The Applicant seeks access to certain information from the Respondent concerning medical tests performed on him. He applied for that information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The Respondent refused his access applications in part. The Applicant seeks review of the decisions refusing his access applications.
The Applicant seeks access to information for the purposes of considering whether he may bring a claim for medical negligence. That action is being considered with a view to obtaining compensation for the loss and damage he claims he suffered as a result of the failure to diagnose and treat an illness he had. He also refers to a potential class action.
[2]
Background
The Applicant had been unwell for a number of years after a tick bite. His blood was tested for Lyme disease in 2020. The initial test was positive.
Further tests were carried out at the Institute of Clinical Pathology & Medical Research at Westmead, NSW. The tests were negative. As a result, the Applicant's evidence is that he received no treatment between 2020 and 2024 and as a consequence, suffered from numerous health problems. His evidence was that later he was found to have Lyme disease. His condition was found to be serious.
The Applicant claimed that defects in the testing process produced serology results that were inaccurate. He believed that the medical device used for testing was faulty and that these devices are no longer in use in Australia. He believed that the tests were carried out "with the absence of the main antigens" for the "three strains" of Lyme disease.
On 28 May 2020, the Applicant lodged a complaint (ID 14402) with the Health Care Complaints Commission ("HCCC"). The complaint was about the false negative tests for Lyme disease conducted on the Applicant at Westmead.
On 29 May 2020, the Applicant lodged a further complaint with the HCCC (ID 14418). That complaint also related to the relevant Lyme disease tests. The Applicant indicated that he also had made various other complaints by email.
On 3 August 2023, the Respondent was notified of the outcome of the HCCC assessment of his complaints. The HCCC decided to take no further action.
On 12 September 2023, the Applicant made an access application to the Respondent under the GIPA Act. He sought information, including correspondence and a report. The access application was worded as follows:
"I am an owner of two complaints to NSW Health Ombudsman: Submission ID: 14402, 14418, HCC 20/02976 HCCC Complaint 20/02994, I need to receive a release of correspondence - attached to the investigation:
Appendix 5 and 6;
Appendix 8
Also, all correspondence between NSW Health and ICPMR Westmead, QML Pathology, Laverty microbiology.
All Responses in writing which are comprised into an investigation report. Report in the attachment to the application.
By date: 28.05.2020 - 01.07.2020
By type: Emails and correspondence and investigation
By location: Lauren Tomasich
Other: All information related to my blood sample and testing of my blood sample under the complaint."
Subsequently, the Respondent located documents outside the period of the access application that may have been of potential interest to the Applicant. The Respondent notified the Applicant of the existence of these documents. The Applicant indicated that he sought access to these documents as well as the documents the subject of his original access application. Consequently, a number of documents outside the date range requested by the original access application were dealt with by the Respondent.
Prior to determination, the Respondent consulted with the HCCC as to its views on disclosure in accordance with the requirements of Schedule 1, clause 6(2) of the GIPA Act. The HCCC did not consent to the release of any of the relevant information.
By decision dated 13 November 2023, the Respondent determined to refuse access to some of the information sought on the basis that there was a conclusive presumption against disclosure.
On 20 November 2023, the Applicant sought external review of that decision by the Information Commissioner. The Information Commissioner determined that she was satisfied that the Respondent's decision was justified and made no further recommendations to the Respondent. The Information Commissioner also found that the Applicant's access application was invalid pursuant to s 43 of the GIPA Act. The Applicant states that he was notified of the Information Commissioner's decision on 23 December 2023.
On 25 January 2024, the Applicant filed an application for administrative review of the Respondent's decision. Broadly his contention was that the documents constituting internal email correspondence between staff members of the Respondent were not excluded information of the HCCC.
The Respondent had identified 188 documents in total that fell within the scope of the Applicant's access application. Some of the 188 documents in issue were duplicates of each other. The Respondent's submission referred to 189 documents. However, the confidential bundle provided by the Respondent to the Tribunal contained 188 documents.
On 28 February 2024, the Civil and Administrative Tribunal ("Tribunal") remitted the decision made on 13 November 2023 to the Respondent for reconsideration pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW) ("Administration Act"). The remittal was confined to a subset of the 188 documents in dispute.
A new decision was made in relation to that subset on 5 April 2024. Under that decision, further documents were released to the Applicant. However, the Respondent determined to refuse certain other information on the basis that the information was "excluded information" of the HCCC.
Subsequently, the Applicant wrote to the Tribunal and the Respondent, now requesting release of documents in full. The Applicant identified a number of matters he considered to be public interest considerations in favour of disclosure.
What is currently before the Tribunal for review is both the Respondent's decision made on 5 April 2024 concerning the information that was the subject of the Tribunal's remittal order of 28 February 2024 and the original decision made on 13 November 2023. The Applicant raises various concerns about the handling of his complaints by the Respondent. However, the only matters for determination by the Tribunal are his access applications.
[3]
Applicant's right to information
The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1). It may decide to refuse to provide access to information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act). It is, however, to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act). Whether or not there is a conclusive presumption against disclosure is in issue in the present matter.
The power of the Tribunal to review a decision arises where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("Administration Act") of that decision (s 100 of the GIPA Act).
What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision to refuse to provide access to information in response to an access application (including such a decision that is deemed to have been made) (s 80(d) of the GIPA Act).
An "agency" is defined in s 4(1) of the GIPA Act to include a "public authority". A "public authority" in turn is defined in clause 2 of Schedule 4 of the GIPA Act to include a statutory body representing the Crown. The Respondent is, for the purpose of any Act, a statutory body representing the Crown (s 9(2)(f) of the Health Administration Act 1982 (NSW)). The Respondent, as a result, is an "agency".
An agency has, therefore, made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a decision to refuse to provide access to information.
The Tribunal under s 63 of the Administration Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
The provisions of the GIPA Act referred to above apply where the Applicant has made a valid "access application" seeking "government information". It is not in dispute that the Applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act). Where, however, an access application is made to an agency for access to "excluded information of the agency", the application is not valid (s 43 of the GIPA Act). Where, on the other hand, the information in question is held by another agency, that is, not by the agency whose information it is, s 43 does not invalidate an access application seeking the information. In the present case, even if the information sought is found to be "excluded information" of the HCCC, an access application for that information when held by another agency, the Respondent, is not rendered invalid by reason of s 43. In these circumstances, that the Applicant had made a valid access application was not disputed.
The Respondent has the onus of establishing that the decision it has made is justified (s 105(1) of the GIPA Act).
[4]
Consideration
The question for determination by the Tribunal is whether, as the Respondent submits, it is to be conclusively presumed that there is an overriding public interest against disclosure of the information the Applicant seeks. That presumption applies to relevant government information described in Schedule 1 of the GIPA Act. The relevant information is the following.
"6 Excluded information
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.
(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.
(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5".
Schedule 4 defines "excluded information" as follows:
"excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency."
Schedule 2 sets out what is "excluded information" of particular agencies. It provides:
"2 Complaints handling and investigative information
…….
The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint)".
Clause 2 of Schedule 2 refers to "complaint handling" and "investigative", functions. In Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81, at [27], the Tribunal said that these terms should be given their natural meaning. It is not in dispute that a complaint or complaints had been made and those complaints were handled and investigated by the HCCC. The main question is whether or the extent to which the information sought by the Applicant "relates to" these functions.
The reach of what is "excluded information" was described in Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185. The Appeal Panel said:
"The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of and against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information (Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]). As set out above, "excluded information" is defined as being information "that relates to any function specified... in relation to the agency". The expression "relate to" has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]). As the Tribunal noted in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15], in each case, the question is the extent to which the information in issue has a connection with the specified function".
The Tribunal has in a number of other cases given further consideration to what kind of relationship between information and a complaint or investigative function is required for that information to fall within clause 2 of Schedule 2 of the GIPA Act. It has found that there needs to be a direct relationship between the information and the relevant function. This could include information in a document created by the HCCC in handling or investigating a complaint. A direct relationship of the requisite kind may also arise where the information is requested by the HCCC as a direct result of the complaint or investigation (Sinclair v Psychology Council of NSW [2017] NSWCATAD 8, [71]).
The test of whether information "relates to" a relevant function has also been put in terms of the "extent to" which the information in question has a connection with the specified function (see Watson v NSW Trustee and Guardian [2015] NSWCATAD 139). The test has been further described as requiring a "clearly apparent connection" between the information sought and the function in question (Sethi v New South Wales Crime Commission [2024] NSWCATAD 21, at [110]).
What the HCCC does under the Health Care Complaints Act 1993 (NSW) ("HCCC Act") when handling and investigating complaints is relevant to determination of this matter. Under s 3A(2) of the HCCC Act, the role of the HCCC is described as follows:
"The Commission is an independent body with responsibility for dealing with complaints under this Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with appropriate professional councils".
When the HCCC receives the relevant complaints, it is bound to handle those complaints in accordance with s 19 of the HCCC Act. This requires an assessment of the complaint for the purpose of deciding whether the complaint should be investigated and otherwise dealt with under s 20 of the HCCC Act. In the Respondent's submission, it was apparent from the context in which the information claimed to be excluded information was created and or communicated, that the information clearly had an "apparent connection" to the excluded functions of the HCCC.
The information in dispute largely falls into two categories. They are;
1. information provided directly to the HCCC or originating from the HCCC that is held by the Respondent.
2. internal correspondence instigated by the Respondent for the purpose of providing a response to the HCCC where that correspondence reveals the substance of information contained in the first category.
The Respondent's submission was that there was a "clearly apparent connection" between the documents contained in the first category and the relevant complaints and investigative functions of the HCCC. This was correspondence entered into and received by the HCCC in the exercise of the relevant functions. Accordingly, in the Respondent's submission, the information in the first category was excluded information of the HCCC and subject to a conclusive presumption against disclosure.
In the Respondent's submission, the second category, being internal correspondence, was not held by the HCCC. In all likelihood, it may never have been seen by the HCCC. The information contained within such internal correspondence however was, in the Respondent's submission, still capable of characterisation as excluded information of the HCCC when it substantially reproduced the content of documents that contained excluded information of the HCCC.
The Respondent relied on Roberts v Commissioner of Police [2018] NSWCATAD 127. The Tribunal in this case found that "the conclusive presumption against disclosure in cl 6 of Schedule 1 would be rendered largely redundant if it did not extend to secondary reproductions of the source information, as disclosure of the reproduction will reveal the contents of the information. In those circumstances, the secondary reproductions were also excluded information". The case involved a situation where the secondary information in question "reproduces or references or reveals the substance of the excluded information".
I accept the Respondent's submissions, with certain qualifications (see [49] below). Where information is received by or provided by the HCCC and the subject matter of that information is the Applicant's complaints, I accept that this is information that falls within clause 2 of Schedule 2. I also accept the Respondent's submission that clause 2 will also capture information contained in correspondence between the Respondent's own personnel and other internal documents created by it about complaints being handled by the HCCC, where that information substantially reproduces or reveals the content of excluded information.
Whether the connection between the information and the functions in question must be a "direct" connection or a "clearly apparent connection", in my opinion, clause 2 will, on the facts at hand, capture both the information contained in documents received or sent by the HCCC as well material contained in documents created by the Respondent that reveals or reproduces that information.
Some of the document's in dispute pre-date the date of the Applicant's complaints to the HCCC, namely 28 May 2023 and 29 May 2023. Whether these documents can "relate to" the complaints and investigative functions in this matter requires specific consideration. These documents deal with substantially the same subject matter as documents coming into existence after the dates of the complaints to the HCCC, namely the handling of the Applicant's complaints about the medical testing done on him. They were created during a relatively short period in May 2023 leading up to the making of the Applicant's complaints to the HCCC about testing. Disclosure of such documents is likely to reveal information that is substantially the same as that created after the date of the complaints.
In these circumstances, the documents created before the date of the complaints to the HCCC can, in my opinion, be said to "relate to" those complaints and their handling. That conclusion will be the same whether the relationship between the information and the functions in question needs to be a "direct" relationship or a "clearly apparent connection". To narrow the scope of clause 2 of Schedule 2 so as to exclude documents created before the date of the Applicant's complaints would require an interpretation of clause 2 that could, on the facts of the matter, defeat the purpose of the legislation, by revealing the substance of the excluded information. Such a construction is not preferred.
The documents in dispute contain various attachments. These attachments for the most part were in existence long before the time of the Applicant's complaints. Where documents have a prior existence independent of any complaint later made, I do not think that such a document or the information contained in it can fall within clause 2 of Schedule 2 of the GIPA Act. Such documents, having had a prior independent existence, do not lose their character as independent documents simply because they later become attached to an email or other document that falls within clause 2. Documents of this kind need to be separately tested under the provisions of the GIPA Act to determine whether or not access should be granted, other than where already disclosed to the Applicant. The Tribunal notes that some of the information sought by the Applicant has been released to him with redactions.
I have reviewed the 188 documents in dispute in this matter. The 188 documents in issue are sequentially numbered in a confidential bundle provided by the Respondent. The individual pages in the bundle are also numbered sequentially. I adopt that numbering of individual pages and identify below relevant pages in the bundle using that numbering.
Attachments to documents found in the confidential bundle of documents fall within the following categories;
1. copies of medical tests relating to the Applicant
2. copies of documents containing technical and scientific information relating to testing for Lyme disease
3. copies of therapeutic goods certifications
4. copies of correspondence of the Applicant pre-dating May 2024.
The following pages of the bundle of documents contained documents within the above descriptions; 7-8; 10-11;17-20; 21-23; 29-33; 34-35; 42-85; 93-114; 116-117; 119-120;143-144; 151-194; 202-223; 246-255; 365-366; 401-3; 510-543; 545-546; 548-547; 570-603; 607; 685-690; 735-750; 755-798; 806-811; 834-836.
Substantial parts of the content described at [52] above is duplicated. Disclosure once of content that is duplicated is sufficient, where disclosure is allowed under the GIPA Act.
The evidence also establishes that certain documents in dispute were documents which the Applicant may already have in his possession. The Respondent's submission was that notwithstanding these circumstances, the likelihood that the Applicant already held such documents or was aware of their contents did not disturb the conclusive presumption of an overriding public interest against disclosure (Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253, at [34]).
To the extent that documents may already be in the possession of the Applicant and are not documents of the kind referred to at [51]-[52] above, I accept the Respondent's submission. It may, at first glance, appear curious that documents provided to the Respondent by the Applicant himself may, as a result of coming into the possession of the Respondent, become government information that is subject to the provisions of the GIPA Act, with the consequence that the Applicant's own access to that information may be constrained by the provisions of the GIPA Act. However, this will be the consequence of information coming into the hands of an agency from whatever source.
The Applicant submitted that certain information held by the Respondent did not belong to the category of excluded information. This was because the information was generated by the Respondent in regards not only to the complaints he made to the HCCC but also to complaints submitted by email directly from the Applicant to the Respondent. Therefore, this information was not "excluded information" of the HCCC.
My review of the documents in the Respondent's confidential bundle allows me to conclude that the information produced by the Respondent dealing with complaints made directly by the Applicant to the Respondent cannot meaningfully be separated from information created to deal with the Applicant's complaints to the HCCC. The subject matter is the same, namely handling the Applicant's complaints about medical tests. For the reasons set out at [44]-[48] above, the information created by the Respondent in relation to the Applicant's complaints remains "excluded information".
Document 189 identified in the Respondent's submission was not included in the confidential tender bundle. It is described as an "Email thread between NSWHP staff dated 30 June 2020 at 11:09am". To the extent that this email thread contains information of the kind described at [51] above, the Respondent should reconsider its decision in accordance with paragraph [49] above. To the extent that this information is about the Applicant's complaints, disclosure should not be made for the reasons set out above.
"Excluded information" may be released to an applicant if under clause 6 of Schedule 1 of the GIPA Act, the agency in question has consented to disclosure. As no such consent has been given by the HCCC, the conclusive presumption against disclosure of the information sought by the Applicant remains.
The Applicant has assisted the Tribunal by providing to it certain scientific and technical information about testing for Lyme disease. That information is set out below, together with the other material before the Tribunal in this matter. Each document received by the Tribunal is identified as an exhibit as follows.
1. Exhibit A - Administrative review application form dated 22 January 2024
2. Exhibit B - Affidavit of Andrey Efremov dated 14 June 2024
3. Exhibit C - Respondent's Written Submissions filed on 21 May 2024
4. Exhibit D - Affidavit of Matthew Ryan dated 20 May 2024 (redacted)
5. Exhibit E - Affidavit of Matthew Ryan dated 20 May 2024 (unredacted)
6. Exhibit F - Bundle of "Documents Subject To Conclusive Presumption Against Disclosure" (Two Volumes)
7. Exhibit H - Respondent's Open Court Book
8. Exhibit I - Article by D Dickeson and Ors, "Concordance of four commercial enzyme immunoassay and three immunoblot formats for the detection of Lyme borreliosis antibodies in human serum: the two-tier approach remains" dated April 2026
9. Exhibit J - Letter from NSW Health Pathology to Andrey Efremov dated 5 July 2024
[5]
Orders
1. The administratively reviewable decisions of the Respondent are set aside.
2. The administratively reviewable decisions are remitted for reconsideration by the Respondent in accordance with the reasons of the Tribunal at paragraph [49].
3. The administratively reviewable decisions of the Respondent are otherwise affirmed.
[6]
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: 27 August 2024