This is an application by DLT (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of a deemed refusal by Justice Health and Forensic Mental Health Network under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) to deal with an access application he purportedly made to the agency under s 41 of the Act on or about 17 August 2021. This application was made to the Tribunal on 21 September 2021 (the application).
For the reasons set out following, the Tribunal has decided that the decision (the deemed refusal) ought to be remitted to the agency pursuant to s 65 of the ADR Act for reconsideration.
[2]
The access application
In his application for administrative review the applicant states that on 17 August 2021 he lodged a GIPA application with the agency in which he sought access to his "health information/records from 1 April 2020 up to the present" (the access application). He states that the agency "refused to acknowledge the receipt of my GIPA application and process it within the statutory time limit." Neither the applicant, nor the agency, has filed a copy of the access application.
There is no evidence before me that indicates that the applicant ever amended his access application pursuant to s 49(1) of the GIPA Act.
It appears that in the early stages of this dispute the agency's position was that the applicant's communication to it of on or about 17 August 2021 did not constitute an access application made under s 41 of the GIPA Act. However, that point has subsequently been conceded by the agency, or at least it is no longer argued by the agency.
It is not in issue that the agency did not decide the access application within the 20 day decision period from its receipt as required by s 57(1) of the GIPA Act or within any extended period permitted by ss 57(2) and (4). Accordingly, the agency is deemed to have decided to refuse to deal with the access application by operation of s 63(1) of the GIPA Act.
[3]
Background
The applicant is a person detained in a secure mental health facility known as the Forensic Hospital in accordance with the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The agency is a statutory health corporation established under s 41 and Schedule 2 of the Health Services Act 1997. There is no issue that the agency is an "agency" within the meaning of s 4 of the GIPA Act and that it operates subject to the provisions of that Act.
The access application that is the genesis of this administrative review is one of a number of access applications that have been made by the applicant to the agency over many years.
There would appear to be some connection between the access application that gives rise to this administrative review and some earlier access applications, in particular an access application the applicant made to the agency on 10 January 2020, which ultimately became the subject of administrative review proceeding 2020/00188079. By that application, the applicant sought access to his medical records from 1 January 2017 up to "the present" (being 10 January 2020).
In a Notice of Decision dated 14 September 2020 the agency informed the applicant that it had decided to refuse to reproduce medical records from 1 January 2017 to 25 January 2019, on the ground that the applicant had an opportunity to access that information in monthly meetings and to do so would require an unreasonable and substantial diversion of resources. The agency also informed the applicant that it would provide him access to medical records from 26 January 2019 to 24 April 2020, via the Nurse Unit Manager, subject to redaction of the names of the authors of the documents as personal information under cl3(a) of the Table to s14 of the GIPA Act. In disposition of its administrative review of this decision, on 7 July 2021, the Tribunal, differently constituted, set aside the agency's decision not to disclose certain documents and remitted the matter to the agency for further determination.
The agency subsequently re-determined the applicant's 10 January 2020 access application pursuant to the Tribunal order of 7 July 2021, providing an Amended Notice of Decision dated 26 November 2021. A copy of that determination is included in the agency's evidence in these proceedings. In short summary, the agency determined to provide the applicant with access to all of the information falling within the scope of his 10 January 2020 access request, with redactions of the names of authors for the documents for the period 1 January 2017 to 25 January 2019. That Notice included a breakdown of all the documents released in relation to the application, being those now released for 1 January 2017 to 25 January 2019 (to be provided through the Nurse Unit Manager) and those already provided for 26 January 2019 to 24 April 2020.
The present proceedings came before the Tribunal, differently constituted, for a Case Conference on 29 November 2021, which was shortly after the agency had given notice of its redetermination of the 10 January 2020 access application in the Amended Notice of Decision dated 26 November 2021. The proceedings were adjourned to a further Case Conference on 28 February 2022 and the following Notation was made in relation to that direction:
The Tribunal notes and the parties agree that the respondent will undertake to copy all of the health records going back to 25 April 2020 (with surname redactions) on or before the end of February 2022. If the respondent is able to meet this undertaking, and continues to provide fresh/ongoing records on a monthly basis, [the applicant] will be expected to withdraw his administrative review application on record on the next occasion.
By letter to the applicant dated 23 February 2022 (headed Access to Medical Records 1 January 2017 to 31 January 2022) the agency stated that medical records from 25 April 2020 to 31 January 2022 were provided, stating as follows:
Re: Access to Medical Records 1 January 2017 to 31 January 2022
In compliance with the NCAT order dated 29 November 2021 (Attachment 1) please find your medical records from 25 April 2020 to 31 January 2022. In conjunction to the documents previous release (sic) under the Decision Notice dated 26 November 2021, Justice Health Forensic Mental health Network (the Network) has now provided access to your medical records from 1 January 2017 to 31 January 2022.
The following breakdown of the all (sic) pages released by the Network in relation to NCAT Case numbers 2021/00269153 and 2020/00188079:
[this is summary of what is set out:
25 April 2020 to 31 December 2020 1467 pages
1 January 2021 to 31 December 2021 2297 pages
1 January 2022 (apparently to 31 January 2022) 180 pages
1 January 2017 to 25 January 2019 1849 pages
26 January 2019 to 8 February 2020 2578 pages
8 February 2020 to 24 April 2020 665 pages]
My understanding of the current plan moving forward is that you will be provided with access to your current medical records on a month to month basis.
…
I note that this letter does not state that any information falling within the scope of the access application will not be disclosed, or that any part of it will only partially be disclosed, because of partial redactions.
The subsequent Case Conference on 28 February 2022 was adjourned to a Case Conference on 7 March 2022, where the following directions were made:
1. Note the parties' agreement that the applicant is entitled to access to the information the subject of his access request, but there is a dispute as to the appropriate terms of access.
2. Justice Health & Forensic Mental Health Network is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 4 April 2022. The submissions of the respondent are to detail the forms of access then existing and, if different, the forms of access which the respondent proposes.
3. [the applicant] is to give the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 02 May 2022. In his evidence and submissions, the applicant is to address why the forms of access to date, or proposed by the respondent, are not acceptable to him, and to detail what he submits is a more appropriate alternative.
4. Note that the respondent's solicitor will confer with the applicant's treating team with a view to facilitating his ability to file and serve material in accordance with these orders.
5. Justice Health & Forensic Mental Health Network is to give to the Tribunal and all other parties the following material: all evidence in reply, submissions and a summary of legal arguments before 16 May 2022.
6. The proceeding is listed for hearing on 23 May 2022 at 10am by phone for 1 day.
In response to these directions, on 4 April 2022, the agency filed and served a submission which relevantly states:
….
7. In accordance with the GIPA decision Notice dated 26 November 2021, the applicant's medical records from 1 January 2017 to 24 April 2020 were made available for his access in accordance with the standing arrangement for access to documents for the applicant as directed by the Forensic Hospital.
8. In a letter to the applicant from the respondent dated 23 February 2022, the applicant was granted access to, in compliance with the NCAT order dated 29 November 2021, all his medical records from 25 April 2020 to 21 January 2022.
9. The combination of 2 sets of records the applicant has been now provided access to means that the applicant has now been granted access to a redacted version of all records he has requested in his GIPA application.
…
20. The proposals are that -
1. The Applicant's restriction on only having access to 100 pages at a time continue for security reasons.
2. The Applicant's restriction on receiving redacted copies of his records continue for security reasons.
3. The applicant's proposal for the shift leader nurse to be added to the list of persons able to give him access to the next 100 pages be put in place.
4. Further investigation of the matter be ongoing to try and establish a system whereby the applicant can have full access electronically in his room to his full redacted records whilst meeting the full security requirements of the Forensic Hospital.
In a submission filed and served on 16 May 2022 the agency conceded that it had not provided the applicant with access to the information it had determined to disclose to him in accordance with its initial submission, citing significant disruptions caused by staff and other patient illnesses, including a COVID-19 outbreak, staff resignations, and its reliance upon temporary staff undergoing training. It also submitted that it has conducted a risk assessment, and as a consequence of that, has determined that it will provide the applicant with a Kindle Wi-Fi e-Reader from which he may access the information to which he has been granted access. This e-Reader has been ordered but not yet delivered. This remained the position at the hearing on 23 May 2022.
In his submissions filed in response to the Tribunal's directions of 7 March 2022, dated 5 May 2022, the applicant complains that the agency has not provided him with access to the information to which he has been given access in accordance with its proposals. He contends he has only had very limited access to this information and that attempting to organise access is very difficult. He also states:
7 … to date I was only allowed (sic) to the Nurses Notes for August, September and October 2021, no doctor reports and reports to the Mental Health Review Tribunal were disclosed to me which I requested under the GIPA Act.
…
12 I am seeking order from NCAT to compel Justice Health to respond to my GIPA application and allow my full access to all the documents requested under the Act …
At the hearing, the applicant reiterated his complaints about being provided with very restricted and unreliable access to the information which had been released to him in response to his access application. Additionally, and importantly, he also complained that some information which he contends falls within the scope of his access application has not been disclosed by the agency, or is subject to redaction, resulting in it only being partially disclosed. Mr Sterry, for the agency, did not challenge that contention, stating that this was in accordance with established practice. That "established practice" appears to be of some historical origin, relating to an arrangement put in place at some time as a result of some intervention by the NSW Ombudsman.
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Consideration
It will be apparent from what has been set out above that in these proceedings to date there has been some unhelpful conflation of Matter Numbers 2021/00269153 (the present proceedings) and 2020/00188079 (the proceedings the subject of the Tribunal orders of 7 July 2021) and as a consequence, some obscuring of the decision of the agency that is the subject of this administrative review.
The application for administrative review the subject of these proceedings concerned the agency's deemed refusal to deal with an access application: s 80(c) of the GIPA Act. However, it appears to have been treated, in the Case Conference conducted on 29 November 2021, as an application for administrative review of a decision to provide access to information in a particular way (or a decision not to provide access in the way requested by the applicant): s 80(i) of the GIPA Act.
The agency appears to consider the notation made by the Tribunal at the Case Conference conducted on 29 November 2021 as 'an order' with binding effect on the parties. It attaches particular significance to the words "with surname redactions" included in this notation as authorising it to redact the documents it has decided to release to the applicant. However, this notation is not an order. It is a non-binding notation that appears to attempt to capture an agreement reached in the Case Conference as to how the dispute would potentially be resolved.
In any event, there is a difference between the redaction of surnames, to which the applicant may not have an objection, and the withholding, or more extensive redaction, of categories of documents such as doctors' reports and reports to the Mental Health Review Tribunal, which the applicant contends has occurred despite the agency's advice to him that all information falling within the scope of his access application would be disclosed.
I am not satisfied that the applicant's access application has been squarely dealt with in accordance with the provisions of the GIPA Act, despite the agency's subsequent decision to disclose documents falling within its scope to the applicant. In particular, there has not been a transparent decision made in relation to the access application of 17 August 2021 as to whether some documents falling within the scope of the access application will not be disclosed or will be only partially disclosed to the applicant, and which sets out the grounds for this non-disclosure. Nor has there been a transparent decision as to the form of access to the disclosed information the agency will provide. Both are "reviewable decisions" for the purposes of Part 5 of the GIPA Act: s 80(d) and (i) of the GIPA Act. That has the consequence that the agency's position on the administrative review application the subject of the present proceedings is not sufficiently clear to enable the hearing listed for 23 May 2022 to proceed, bearing in mind that under s 105(1) of the GIPA Act the agency bears the onus of establishing that its decision is justified.
Consequently, having regard to the current presentation of the matter, I am satisfied that it is appropriate to remit the reviewable decision (being the deemed refusal to provide access to government information) to the agency pursuant to s 65 of the ADR Act for reconsideration in accordance with the provisions of the GIPA Act.
That reconsideration will need to address the following matters:
1. Providing a copy of, and identifying the agency's understanding as to the scope of the access application made by the applicant pursuant to s 41 of the GIPA Act on or about 17 August 2021;
2. Identifying the relationship, if any, between the access application made on or about 17 August 2021 and any other access application made by the applicant and determined by the agency, in particular the access application made on 10 January 2020 the subject of proceedings 2020/00188079;
3. Providing the agency's decision in relation to the remitted administratively reviewable decision, in accordance with s 65(2) of the ADR Act, including the reasons for the reconsidered decision.
[5]
Order
For the foregoing reasons, I make the following orders:
1. Pursuant to s 65 of the Administrative Decisions Review Act 1997, the reviewable decision (being the deemed refusal to deal with an access application) is remitted to Justice Health and Forensic Mental Health Network (the agency) for reconsideration in accordance with these reasons.
2. The agency is to comply with order 1 by 4 July 2022 by providing its reconsidered decision to the applicant and the Tribunal.
3. The applicant is to notify the agency and the Tribunal by 15 August 2022 if he wishes to withdraw, or proceed with, his application for administrative review in relation to the agency's reconsidered decision. If the applicant wishes to proceed with the application he is to set out in detail the grounds upon which he seeks administrative review of the reconsidered decision.
4. The proceedings are listed for a Case Conference on 29 August 2022 at 10:30am. That listing will be vacated if the applicant withdraws the application in accordance with order (3).
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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
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Decision last updated: 02 June 2022