DLT v Justice Health & Forensic Mental Health Network

The decision under review

1. On 4 July 2022, the respondent made a further decision, to provide DLT with access to some of the information sought in the GIPA request under ss 58(1)(a) and (d) of the GIPA Act. It stated that it had conducted a search of its records to identify all information falling within the scope of the GIPA request and that it had applied the public interest test and identified public interest considerations both favour of and against disclosure, as follows.

Public interest considerations in favour of disclosure:

1. The respondent decided that disclosure of the information could reasonably be expected to promote the fair and responsible handling of health information, as it related to his health information and medical records. Disclosure of that type of information encourages health professionals to ensure that they are handling and recording health information fairly and responsibly. In addition, the requested information was personal information of DLT.

Public interest considerations against disclosure

1. The respondent relied upon cl 3(a) to the Table to s 14(2) of the GIPA Act, which provides that "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."
2. The respondent stated that the words "reveal information" are defined in Sch 4 Cl 1 of the GIPA Act to mean "disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)". Therefore, "publicly disclosed" means that there has to have been a prior disclosure of the information to the general public.
3. The respondent stated, relevantly: I do not consider that the surnames of any of the medical professionals and JHFMHN staff referred to in the documents responsive to the access application have previously been publicly disclosed. I understand that when JHFMHN has released documents containing your health information to you in response to previous access applications, the surnames of the medical practitioners and JHFMHN staff recorded in those documents have been redacted. "Personal information" is defined in Sch 4 cl 4 of the GIPA Act to mean "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion." All of the documents that are responsive to the access application contain personal information, as defined above. This includes the surnames of medical practitioners and JHFMHN staff. Having regard to the above, I am satisfied that releasing the documents responsive to the access application, in full, would reveal personal information, as contemplated by cl 3(a) of the Table to s 14. I have given strong weighting to this consideration against public disclosure.
4. The respondent also relied upon cl 3(f) to the Table to s 14(2) of the GIPA Act. This provides that "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… (f) expose a person to a risk of harm or of serious harassment or serious intimidation."
5. The respondent stated, relevantly: Having regard to your conduct in the past (see also GIPA Act, s 55(1)), I am satisfied that releasing certain personal information, being medical practitioners' and JHFMHN staff's surnames, could result in those persons to whom that information relates being at risk of harm, serious harassment or serious intimidation. I have given strong weighting to this consideration against public disclosure.
6. The respondent also relied upon cl 1(f) to the Table to s 14(2) of the GIPA Act, which provides that "there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to … (f) prejudice the effective exercise by an agency of the agency's functions."
7. The respondent stated that as a statutory health corporation constituted under s 41 of the HSA, it has the following functions: 1. To conduct public hospitals or health institutions or to provide health services or health support services (or any combination of these): s 12(a); 2. To achieve and maintain an adequate standard in the conduct of any public hospital or health institution, or the provision of a health service or health support service, under its control: s 12(c); and 3. To ensure the efficient and economic operation of any such public hospital, health institution, health service or health support service: s 12(d).
8. For the reasons relied upon in relation to cl 3(f) of the Table to s 14(2) of the GIPA Act, the respondent decided that the release of the withheld information could prejudice the effective exercise of its functions, both generally and with respect to DLT's clinical care. This is because the release of the withheld information might cause the persons to whom the personal information relates becoming concerned about their safety whilst employed, which might cause them to resign. Also, if it were to become widely known that such information has been released, it might be difficult for it to employ staff in the future.
9. The respondent also stated: Additionally, I am aware that you have been diagnosed with a psychotic disorder characterised by the formation of persecutory and conspiratorial delusions. I have concerns that, as a result of your condition, the release of surnames of treating staff may compromise the ability of JHFMHN to provide you with treatment and care. I have given strong weighting to this consideration against public disclosure.
10. The respondent stated that in balancing the public interest test, it had given strong weighting to the identified considerations in favour of disclosure, but very strong weighting to those considerations against disclosure. It concluded that the redaction of surnames of medical practitioners and it staff does not materially detract from the medical records that were provided to DLT.
11. In relation to the form of access, the respondent stated, relevantly: I have confirmed that you have been provided with access to your medical records, with the surnames of staff redacted, on a monthly basis since April 2020, including the records that this Notice of Decision deals with. Your access to the responsive information will be limited to 100 pages of the information at a time. To access the information, you are required to request that the Nurse Unit Manager of the Clovelly Unit of the Forensic Hospital provide you with 100 pages of the information and this will be provided to you in exchange for the 100 pages of information that you may already have in your possession.

The hearing

1. I conducted a hearing on 5 December 2022, at which DLT was self-represented and Ms K Mattes appeared for the respondent.

The evidence

1. The respondent relied upon the following evidence: 1. Statement of Associate-Professor Ellis dated 5 October 2022; 2. Letter from DLT to Associate-Professor Ellis dated 23 November 2022; 3. An open tender bundle dated 6 October 2022; and 4. A further open tender bundle filed on 18 November 2022.

Evidence of Associate-Professor Ellis

1. DLT notified the respondent that he required Associate-Professor Ellis to attend for cross-examination and the witness appeared by telephone. His statement dated 5 October 2022 was admitted into evidence and marked as Ex "A".
2. I note that in Ex A, the witness stated that he has been the Clinical Director and Medical Superintendent of the Forensic Hospital in Sydney since 23 April 2018. The Forensic Hospital is a high security mental health facility for patients who have been in contact with the criminal justice system and high-risk civil patients and it is operated by the respondent on behalf of NSW Health. All clinical services are provided by the respondent through a multi-disciplinary team of medical, nursing and allied health professionals.
3. The witness stated that his responsibilities include: (a) line management of medical staff; (b) oversight of clinical care; (c) direct clinical care of select patients; (d) maintenance of NSW Ministry of Health policies; and (e) functions under the Mental Health Act 2007 (NSW) and Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). He does not provide direct clinical care to DLT, but he has overall responsibility for the care and treatment of patients in the Forensic Hospital. He had previously been a treating doctor whilst he was a training registrar in forensic psychiatry when DLT was a patient of the old Long Bay Prison Hospital in 2003.
4. The witness also stated that DLT has a diagnosis of psychotic disorder, which is either a delusional disorder or schizophrenia. The primary symptoms are persecutory and querulous delusions and he has a fixed belief in a nation spanning conspiracy to end his life and corruption at most levels of legal and administrative systems and he has a history of sending correspondence to public officials in Australia and overseas. He stated, relevantly: 15. On 10 and 26 January 2019, (DLT) sent letters with threatening content and a white powder to political and media addresses. (DLT) was subsequently charged with offences of use post/similar service to menace/harass/be offensive (6 counts) and cause belief explosive/dangerous/harmful article is carried (5 counts). These charges were later withdrawn during the course of a fitness shearing. 16. As recently as 1 September 2022, (DLT) sent correspondence to the President of the MHRT. By that letter, (DLT) threatened to sexually assault, amongst others, the wife of the President of the MHRT, the wife of the NSW Premier, Dominic Perrottet, and the partner of the Prime Minister Anthony Albanese MP. He also threatened to "blow up" a number of government, JHFMHN and MHRT buildings. A copy of that letter is annexed to this statement and marked "A". 17. On 7 September 2022, (DLT) attempted to send correspondence containing similar threats to the Acting Chief Executive of the JHFMHN, Wendy Hoey, after findings that a complaint that (DLT) had made alleging unprofessional behaviour of staff was unsubstantiated. A copy of this letter is annexed to this statement and marked "B". 18. The Forensic Hospital has had to put significant measures in place to seek to prevent (DLT) from undertaking similar conduct to that described above, such as monitoring (DLT)'s external correspondence…
5. The witness said that as a matter of practice, the respondent's staff are only ever referred to by their first name when dealing with patients admitted to the Forensic Hospital. This practice was developed as a security measure to address concerns about patients being able to identify staff and their family members outside of the clinical environment and it is considered a necessary measure in view of the nature and risk associated with many of the patients. These concerns are amplified in the case of DLT, particularly due to his pattern of conduct in making threats regarding individuals and their family members. He stated, relevantly: 21. As part of his diagnosis of psychotic disorder, (DLT) has a tendency to become preoccupied with individuals and to build those individuals into his conspiratorial delusions. I am concerned that if staff names were released to (DLT) in his medical records, those staff would become the subject of (DLT)'s preoccupation. The resulting suspicion in which he would come to view those staff would significantly impede their ability to provide therapeutic care to (DLT). 22. I am very concerned that were (DLT) to be provided with the names of NHFMHN staff in his medical records, those staff members and their families would become the subject of threats of harm from (DLT). 23. Whilst patients are entitled to make complaints and raise concerns regarding staff (and are able to do so without having the full names of staff disclosed), over the years (DLT) has engaged in a pattern of conduct that goes well beyond making legitimate complaints about JHFMHN staff. I am of the view that disclosure of staff names would lead to staff becoming the subject of numerous and querulous complaints by (DLT). Again, such complaints could significantly impede the ability of JHFMHN to provide therapeutic care to (DLT). 24. The current practice of not making staff names available is a practice that gives staff some measure of confidence in working in a difficult environment with high-risk patients. I am concerned that if this practice was not observed, and identifying information about staff was disclosed, staff would be reticent to work with (DLT) and possibly other patients as well. This is particularly the case, if (DLT) had access to staff members' names and then disclosed that information to other Forensic Hospital patients. This would pose a risk to both the provision of care and treatment to (DLT) and to the security of staff members and (DLT). 25. If staff members thought that (DLT) had access to their names, they might be less likely to make comprehensive progress notes about (DLT), so as to avoid being the subject of his delusions. Comprehensive notes are of paramount importance; they are necessary to monitor the behaviour and impact of treatment on patients. If staff were less forthcoming and honest in their recording of notes with respect to patients, there is a very real risk that the ability of JHFMHN to provide therapeutic care to patients, and in particular (DLT), would be compromised…
6. The witness stated that there are at least three reasons why DLT is currently provided access to 100 pages of information at a time, namely: 1. The respondent is concerned that if DLT is given access to any more information than that, this may cause his pathology to become heightened. It is part of his pathology to obsess and read persecutory intent into material that might otherwise be considered innocuous. As a result, he is then liable to form particular beliefs about people or systems, which he then, at times, acts upon, including sending correspondence of the type he previously described in this statement. Another effect is that DLT has a tendency to become distracted from other rehabilitative activities or treatment available to him and the restriction upon access is to prevent him from neglecting other areas of his life that might be positive for his rehabilitation and to facilitate the continued provision of care and treatment to him. 2. The respondent is concerned that if DLT were provided with access to all of the responsive progress notes at any one time, this would likely cause a fire safety hazard, given the extensive volume of records. 3. The respondent decided that in view of the treatment and care responsibilities of its staff, staff have only limited time available to them to provide DLT with access to the information.
7. In cross-examination, DLT sought to question the witness in relation to his clinical qualifications. However, the Tribunal disallowed those questions on the basis that they were not relevant to the issue in dispute, which is whether the respondent's decision to refuse him access to the surnames of medical practitioners and staff is the correct and preferable decision.
8. DLT stated that he wants to have access to the surnames because doctors and staff should be accountable for the clinical notes and he argued that there cannot be any accountability if the note-writers are not fully identified.
9. DLT put to the witness that if the note-writers are identified, they will be more open. However, the witness disagreed with that proposition.
10. DLT then put to the witness that he had spent less than 2 hours with him in the last 21 years. However, the witness disagreed with that proposition.
11. DLT sought to question the witness about security requirements for the respondent's staff. However, the Tribunal disallowed those questions on the basis that they were not relevant to the issue in dispute under the GIPA Act.
12. DLT then asked the witness if he had read his letter to Mr Sterry in November 2022 (Ex B). The witness replied that he had read it and DLT then put to him: Do you agree that the attached reports are contrary to your assertions?
13. The witness replied "No".
14. DLT then sought to ask the witness questions relating to s 6 of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act). However, the Tribunal disallowed those questions on the basis that those questions were not relevant to the current dispute under the GIPA Act.

Applicant's letter to Associate-Professor Ellis dated 12 November 2022

1. This letter was admitted into evidence and marked as Ex "B".
2. I note that the letter contains language that is graphic, florid and offensive in nature, as well as threats of violence. For this reason, I am satisfied that it is appropriate to make an order under s 64(1)(c) of the NCAT Act, restricting the publication of this evidence to the respondent only.
3. [NOT FOR PUBLICATION]

Exhibit "C"

1. This comprises the respondent's open tender bundle. I have considered each of the documents contained in this exhibit, but I have not referred to each document in this decision.

Exhibit "D"

1. This comprises a further open tender bundle from the respondent and was filed on 5 December 2022. It comprises letters from DLT to Associate-Professor Ellis dated 17 October 2022, 25 October 2022, 3 November 2022 and 14 November 2022, respectively.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]

Respondent's submissions

1. In its submissions filed on 6 October 2022, the respondent relied upon the public interest considerations against disclosure found in cll 1(f), 3(b) and 3(f) of the Table to s 14(2) of the GIPA Act and it argued that there is an overriding public interest against disclosure of the withheld information.
2. The respondent relied upon the decision in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 (Camilleri), in which the Appeal Panel of the former Administrative Decisions Tribunal described the approach to be taken when determining whether there is an overriding public interest against disclosure for the purposes of the GIPA Act. The Appeal Panel stated: 24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.
3. The public interest considerations against disclosure in the Table to s 14(2) of the GIPA Act arise when disclosure of information "could reasonably be expected to" have the relevant effect. The phrase "could reasonably be expected to" was used in Sch 1 of the former Freedom of Information Act 1989, and in the Commonwealth Freedom of Information Act 1982, and it has been the subject of extensive judicial consideration. In Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont J held that these words: …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 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 in terms of probabilities or possibilities or the like. …
4. The Tribunal adopted this approach in construing the meaning of these words in the context of the GIPA Act in Flack v Commissioner of Police (NSW) [2011] NSWADT 286.
5. A number of the public interest considerations refer to a reasonable expectation of "prejudice" arising from the disclosure of information. "Prejudice" is to be given its ordinary meaning as it is not defined in the GIPA Act. Its ordinary meaning is "to cause detriment or disadvantage" or "to impede or derogate from".
6. The respondent argued that disclosing the names of medical practitioners and the respondent's staff to DLT could reasonably be expected to have one or more of the following effects: 1. Prejudice the effective exercise of its functions - cl 1(f); 2. Contravene an information protection principle under the PPIP Act - cl 3(b); and 3. Expose a person to risk of harm or of serious harassment or serious intimidation - cl 3(f).
7. In relation to cl 1(f), the respondent stated that Associate-Professor Ellis' evidence is that the respondent is a statutory health corporation constituted under s 41 of the Health Services Act 1997 (NSW) (the HSA) and it has the following relevant functions: 1. To provide health services or health support services - s 12(a) HSA; 2. To achieve and maintain an adequate standard in the provision of a health service or health support service under its control - s 12(c) HSA; and 3. To ensure the efficient and economic operation of the health service or health support service - s 12(d) HSA.
8. Associate-Professor Ellis' evidence is to the effect that the practice of staff are being referred to by their first name when dealing with patients developed as a security measure to address concerns about patients being able to identify staff members and their families outside of the clinical environment. Given DLT's history of fixating upon, and making threats to individuals and their family members, these concerns are amplified in this case. Further, given DLT's clinical diagnosis and his past conduct, there are concerns that if the surnames were released to him, his potential pre-occupation with and resulting suspicion of those staff could significantly impede their ability to provide therapeutic care, because he would likely make numerous and querulous complaints about them.
9. Further, staff would be reticent to work with DLT and possibly other patients if their surnames were to be disclosed and staff members would be less likely to make comprehensive progress notes about DLT, so as to avoid becoming the subject of his delusions. These risks could impact on the provision of care and treatment to DLT and the security of staff members and therefore prejudice the respondent's functions.
10. The respondent noted that the Tribunal has previously accepted that its functions would be prejudiced if staff names were disclosed to DLT. In (DLT) v Justice Health [2006] NSWADT 174, the Administrative Decisions Tribunal accepted that it was the routine practice of the respondent not to disclose staff member's surnames to patients because there is a concern for the physical safety of staff and their families should that information become known to patients and it could lead to staff being less likely to make accurate and comprehensive written notes. The Tribunal upheld the respondent's decision to redact or withhold the names of staff members from documents released to DLT.
11. For these reasons, the public interest consideration against disclosure in cl 1(f) of the Table to s 14(2) of the GIPA Act should be accorded significant weight.
12. While the respondent relied upon cl 3(a) in its decision dated 4 July 2022, its submissions in these proceedings concede that cl 3(a) does not apply. It stated, relevantly: The respondent does not rely upon c. 3(a) as a public interest against disclosure on administrative review. Cl 4(3)(b) of Sch 4 of to the GIPA Act provides that "personal information does not include … information about an individual (compr5ising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions." In circumstances where the redacted information is the names of JHFMHN staff, and the names arguably reveal nothing more than the fact that the named staff members were engaged in the exercise of public functions, being the administration of therapeutic care at the Forensic Hospital, the respondent accepts that cl 3(a) of the Table to s 14 of the GIPA Act does not apply to the redacted information.
13. Instead, the respondent instead relied upon cl 3(b) to the Table in s 14(b) of the GIPA Act, which provides that 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 - "(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".
14. By operation of s 3(1) of the PPIP Act, the respondent is a public sector agency for the purposes of the PPIP Act as it is an "auditable entity" within the meaning of the Government Sector Audit Act 1983 (NSW). Sections 20 and 21 of the PPIP Act provide that it must comply with and not contravene the information privacy principles.
15. "Personal information" is defined in s 4(1) of the PPIP Act as follows: In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
16. The exclusions to the definition of "personal information" in s 4(3) of the PPIP Act do not include the same exclusion as that in cl 4(3)(b) of Sch 4 of the GIPA Act and therefore the names of the respondent's staff are "personal information" within the meaning of s 4(1) of the PPIP Act.
17. Section 18 of the PPIP Act provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
18. The respondent argued that disclosure of the names of its staff to DLT is not a permitted disclosure under s 18(1) of the PPIP Act. Disclosure under the GIPA Act would be for a purpose other than that for which staff names were collected and held and in view of the risks associated with providing care to the respondent's patients, and the established practice of protecting staff names from disclosure, it would be reasonable to infer that staff would object to the disclosure of information of this kind to patients. Further, disclosure is not necessary to prevent or lessen any serious and imminent threat to the life or health of an individual (s 18(1)(c) of the PPIP Act).
19. Therefore, disclosure of the redacted information could reasonably be expected to contravene the information privacy principle in s 18 of the PPIP Act and the public interest consideration against disclosure under cl 3(b) to the Table in s 14(2) of the GIPA Act should be given considerable weight.
20. Clause 3(f) to the Table in s 14(2) of the GIPA Act provides that 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 - "expose a person to a risk of harm or of serious harassment or serious intimidation".
21. In (DLT) v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11, the Tribunal explained the meaning of the words "harm", "harassment" and "intimidation" within cl 3(f), as follows: 25. Harm, harassment and intimidation are not terms that defined in the GIPA Act and must be given their ordinary meaning. These terms were considered by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 and adopted in CJO v NSW Police Force. 26. The Macquarie Dictionary defines "harm" to mean injury, damage, hurt, moral injury, evil, wrong. The Tribunal in AEZ considered that "harm" in the context of clause 3(f) means "a real and substantial detrimental effect on a person" which may have a detrimental effect on their "physical, psychological or emotional wellbeing". 27. The Macquarie Dictionary defines "harass" to mean to trouble by repeated attacks, or disturb persistently. "Intimidate" is defined to mean to make timid or inspire with fear. In AEZ the Tribunal stated that a person who is harassed would be offended, humiliated or intimidated by the conduct in the circumstances. Harassment requires a consideration of whether the person alleged to be harassed was offended, worried, tormented, distressed or harassed by the conduct. 28. Citing PE v MU [2010] NSWDC 2, the Tribunal in AEZ noted that harassment is ongoing behaviour that is found to be threatening or disturbing and intimidation is conduct such as would cause a person to fear for their safety. 29. The requirement that the intimidation or harassment be serious means that the decision maker must be satisfied that the release of the information could reasonably be expected to expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient" (AEZ at [94]).
22. The respondent argued that based on Associate-Professor Ellis' evidence, it could reasonably be expected that disclosure of staff names would expose staff members and their families to a risk of harm or serious harassment or serious intimidation by DLT. This would be consistent with findings made against DLT by previous and differently constituted Tribunals.
23. DLT has a history of sending threatening, harassing and/or intimidatory letters to numerous persons, copies of some of his letters are contained in Ex D, in which he uses insults, threats and generally graphic, disturbing and intimidating language and makes threats against the named recipients and/or their family members. The respondent argued that the nature and content of these letters could cause a named recipient, or others referred to in the letters, to feel offended, humiliated, intimidated, worried, tormented, distressed or harassed, as described by the Tribunal in (DLT) v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11.
24. In that decision, the Tribunal stated: 30. The evidence before me is that (DLT) has a history of fixated behaviour in which he sends often offensive correspondence to office holders. He clearly has strong views about the police and justice systems and sees himself as being victimised by those systems. It was apparent at the hearing that his reason for wishing to obtain the names of the officers who either prepared the Information Report or were involved in the email exchanges between the AFP and Justice Health is so he can pursue action against what he describes as AFP's sinister motives in making reports about him. 31. When looked at objectively, the evidence shows that here are sound reasons for believing that (DLT)'s fixated behaviour will continue. Were he to be provided with the names of the officer who wrote the Information Report or those officers who were involved in email exchanges about the Report, it is highly likely (DLT) would seek to communicate directly with those officers and/or name them in his correspondence with others and on his website. It is also highly likely he would make offensive comments about them and issue threats of violence towards them. 32. (DLT)'s past behaviour strongly indicates that he is likely to engage in harassing and intimidatory behaviour towards the officers named in the Information Report and emails if their identities were known to him. In my view that harassment or intimidation is likely to be at such a level that it amounts to serious harassment or serious intimidation.
25. The respondent argued that when determining the weight to be afforded to the public interest considerations against disclosure, the Tribunal should take notice of the previous findings and as well as the evidence regarding DLT's more-recent conduct and that these factors should be given considerable weight.
26. The respondent concluded that there is an overriding public interest against disclosure of the redacted information and that the correct and preferable decision is to affirm its decision dated 4 July 2022.

Applicant's submissions

1. DLT argued to the effect that the respondent's staff are paranoid, as is their conduct. He maintained that both the GIPA Act and the information & privacy principles require Health Care providers to be accountable and that there can be no accountability with respect to progress notes unless the full names of the authors are disclosed.

Respondent's submissions in reply

1. In reply, the respondent argued that there are measures in place to ensure the accountability & transparency of progress notes by it staff and the fact that surnames are not disclosed to DLT under the GIPA Act does not detract from this.
2. Following the completion of submissions, the Tribunal reserved its decision.

Legal principles

1. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

1. In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
2. I am satisfied that the decision dated 4 July 2022 is a reviewable decision for the purposes of s 80 of the GIPA Act. However, I note that this was varied by the respondent in its submissions filed 6 October 2022, to delete reliance on cl 3(a) of the Table to s 14(2) and to instead rely upon cl 3(b). I am satisfied that this decision, as varied, is the subject of the current administrative review under s 100 of the GIPA Act.
3. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
4. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
5. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
6. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
7. In Flack and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
8. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
9. Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
10. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
11. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
12. Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
13. The provisions of cll 1(f), 3(b) and 3(f) to the Table in s 14(2) of the GIPA Act, which are relied upon by the respondent, and s 107 of the GIPA Act have been set out previously in this decision.
14. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
15. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

Matter in dispute

1. I am satisfied that the matter in dispute in these proceedings is whether the information withheld by the respondent, being the surnames of medical practitioners and staff that it employs, is subject to an overriding public interest consideration against disclosure. In other words, is the decision to withhold that information the correct and preferable decision.

Scope of the GIPA request

1. I am satisfied that the withheld information falls within the scope of the GIPA request.

Public interest factors in favour of disclosure

1. I agree with the public interest factors in favour of disclosure of the withheld information that the respondent identified in its decision dated 4 July 2022, namely: (1) The information could reasonably be expected to promote the fair and responsible handling of health information, as it related to DLT's health information and medical records. Disclosure of that type of information encourages health professionals to ensure that they are handling and recording health information fairly and responsibly; and (2) The information is DLT's personal information.
2. In my view, these factors should be given considerable weight.
3. At the hearing, DLT argued that there cannot be any accountability regarding his clinical records unless the withheld information is disclosed to him under the GIPA Act.
4. However, I reject that proposition and am satisfied that neither the accuracy of the clinical records nor the accountability of the authors of those records depends upon the disclosure of the withheld information to DLT.

Public interest considerations against disclosure

1. Based upon a consideration of all of the evidence before me, I am satisfied that the provisions of cll 3(f), 3(b) and 3(f) of the Table to s 14(2) of the GIPA Act apply to this matter, as follows.

Prejudice the effective exercise of the respondent's functions: cl 1(f);

1. I am satisfied that disclosure of the withheld information to DLT could reasonably be expected to prejudice the effective exercise of the respondent's functions, particularly those identified by Associate-Professor Ellis under s 41 of the HSA. In my view, this consideration should be given significant weight.

Contravene an information privacy principle under the PPIP Act: cl 3(b)

1. I am satisfied that disclosure of the withheld information to DLT could reasonably be expected to contravene an information privacy principle under the PPIP Act and s 18(1) in particular. This requires the respondent to not disclose personal information to a person (other than the person to whom the information relates) or any other body, unless: 1. the disclosure is directly related to the purpose for which the information was collected and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure: s 18(1)(a); or 2. the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body: s 18(1)(b); or 3. the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person: s 18(1)(c).
2. I am satisfied that none of the permitted exceptions in ss 18(1)(a) to (c) of the PPIP Act apply to this matter and that this consideration should be given significant weight.

Expose a person to a risk of harm or of serious harassment or serious intimidation: cl 3(f).

1. Based upon a consideration of all of the evidence before me, and noting the findings made by previous Tribunals regarding the nature of DLT's conduct in writing florid, offensive and threatening correspondence to Associate-Professor Ellis and other public figures, I am satisfied that disclosure of the withheld information to DLT could reasonably be expected to expose the medical practitioners and staff employed by the respondent to a risk of harm or of serious harassment or serious intimidation.
2. In my view, this factor should be given significant weight in the circumstances of this matter.

Balancing the public interest

1. I have applied the public interest test in the manner discussed by the Tribunal in Camilleri and, having done so, I am satisfied that there is an overriding public interest against disclosure of the withheld information to DLT.

Conclusion

1. For the reasons set out above, pursuant to s 63(3)(a) of the ADR Act, the decision of the respondent dated 4 July 2022, as varied by its written submissions filed on 6 October 2022, is affirmed

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

Amendments 23 January 2023 - Amended type of word 'restriction' in catchwords on coversheet. 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: 23 January 2023