GBV v Western Sydney Local Health District - [2024] NSWCATAD 110 - NSWCATAD 2024 case summary — Zoe

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GBV v Western Sydney Local Health District

[2024] NSWCATAD 110

NCAT Administrative and Equal Opportunity|2024-03-22

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-03-22

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

The Application to the Tribunal

GBV filed the application to the Tribunal on 8 November 2023. On the application form he acknowledged the application was lodged out of time, and stated the reason for the late lodgement as follows: The GIPA response was escalated to WCOH and in person meeting was arranged …. on 31st August 2023. WCOH submitted response on 4 OCT 2023. The response was not satisfactory to make this application then.
At the hearing, GBV reiterated his hope that the 31 August 2023 meeting (held in the month following the Notice of Decision) would address and resolve his concerns, but neither the meeting nor the letter received by him from the respondent over a month later (on 4 October 2023) met his expectations.
He said that he then made calls to the Tribunal and attended the registry in Parramatta. He said the registry provided information to him on how to prepare and file the application for review. He said that he needed time to prepare and file a submission, which he had understood was required to be lodged when the application was filed.
When filed with the Tribunal on 8 November 2023, the application was accompanied by 81 pages of documentation. This included the Notice of Decision, the 5 page document prepared by the applicant providing details of the request to the Tribunal, and copies of correspondence and other documents referred to in that 5 page document which is referenced above.
Under the section "Grounds of Review" on the application form, GBV wrote: There is no evidence of [child] put on wait list on 22 May 2017 for his orthodontic treatment by Westmead Centre for Oral Health. The GIPA response found no record of [child's] original wait list. [Child's parents] seeking NCAT to review and evaluate GIPA and WCOH responses and order WCOH to start [child's] orthodontic treatment immediately.
GBV told the Tribunal at the hearing that he believed that his child was put on the waitlist around 26 August 2022, because by the time the application was filed with the Tribunal he had not received any conclusive evidence in their system supporting the date of 22 May 2017.

[5]

The Orthodontic Waitlist

WCOH uses the program Titanium Solutions for the maintenance of waitlists for treatments.
Patients are added to the waitlist for treatment when they are deemed eligible by the specialist.
For each entry on a waitlist, certain information may be recorded, including the patient's name, the date on which they were added to the waitlist and details of any other waitlists they are on.
Attachment C to Mr Profilio's statement was a screen-shot of the child's individual entry on the Orthodontic (Specialist Treatment) waitlist. That screen-shot included the following information: Waitlist: Specialist Treatment Subclass 1: Orthodontics Subclass 2: Z Patient: [child's name] Status: Waiting Entry Status: Routine Exit Status: Routine Listed: 22/05/2017 Assigned: 22/05/2017 Position in List: 0 Notes: code z - checked/approved by [Doctor's names]
Using Titanium Solutions, it is possible to generate a report which lists each of the individual patients on a waitlist, ordered by the date on which they were added to the waitlist, as at the date of the report. Attachment D to Ms Profilio's statement was an example of such a report; it was an excel spreadsheet titled "Orthodontic Waitlist as 23 November 2023 Westmead Centre for Oral Health". The waitlist was recorded as "Ortho" and "Specialist Treatment" and the "sub-class" as "Orthodontics". There was a column for "Waitlist Date Listed" and "Assigned Date". The patients' personal information was redacted, except for GBV's child. The row entry for GBV's child was numbered 26 in the first column.
Ms Profilio explained that the waitlist is a dynamic database that is updated as patients receive treatment and new patients are added. For example, when the patient who is in the first position on the waitlist commences treatment, the patient who was in position 2 moves into position 1, and all other patients also move up a position.
A patient can move up or down a waitlist. A patient could move up because a patient above them has been given their first appointment. A patient could move down because a patient above them, who has been given their first appointment, was unable to attend that appointment, and so was returned to the waitlist.
The "position" of a person on the waitlist, relative to other patients, is not a field that is recorded on the individual waitlist entry, or otherwise in the database.
Ms Profilio says that, following her enquiries, she was satisfied that the information requested in the GIPA Application regarding the child's original position on the orthodontic waitlist is not held: 1. As noted above, the waitlist is maintained as a dynamic database within Titanum Solutions. 2. She had conferred with the Dental Information Officer from WCOH and satisfied herself that the WCOH would not hold a record that showed the number of patients that were on the waitlist on the specific date that the applicant's child was added (22 May 2017). 3. It is not part of WCOH's standard reporting functions or practices to maintain static "snapshots" of the state of the Orthodontic waiting list at particular points in time. 4. For patients with a list date prior to 19 June 2019 (being the date of a data migration), it is not possible to generate a retrospective report which shows what the position of the patient was on the waitlist at some point in time. Accordingly, it is not possible to now create a record which would show a patient's original waitlist position. 5. She was advised by the Dental Information Officer that it was possible that the information regarding the original waitlist number might be held in an archive database. However, it would be necessary to recruit external technical resources to interrogate this date, and there was no guarantee that the information will be there. 6. She was not aware of any other searches that could be undertaken to find the requested information.

[15]

Question 1 - the date the child was added to the waitlist

When the application was lodged by GBV with the Tribunal, he submitted that no conclusive evidence was provided with the Notice of Decision to support the date of 22 May 2017. He also said that: 1. The date of 22 May 2017 made no sense, as his child had been a patient of WCOH since 2013 (he conceded this was the correct date, not 2011) and had undergone surgery there in 2014 and 2016 already. 2. If there was a waiting list, he should have been informed about it earlier, at the time his child was actually placed on the list. 3. As he was told in 2023 there was a likely 8 to 10 year delay, he believes his child was added to the list in around August 2022, which is why the treatment has not happened so far. 4. As a result, his child was overdue for the bracing treatment.
In accordance with the respondent's submissions, I am satisfied that GBV cannot be relevantly now aggrieved by the provision of information requested in response to Question 1 of the GIPA Application. 1. During the proceedings, GBV received the evidence filed by the respondent which included Attachments C and D to Ms Profilio's statement. Both these documents record the date of 22 May 2017 when the child was placed on the "Specialist Treatment" waitlist of the WCOH Orthodontic Clinic (Waitlist), and have now been provided to GBV. 2. Although GBV questions this date, it is not the task of the Tribunal to enquire as to "why" this occurred; refer Crewdson at para 75(4) above. Nor is the agency required to answer questions such as "why" a function was undertaken. In Shevetsova v University of New England [2015] NSWCATAD 49 at [33], the Tribunal found that the GIPA Act does not contemplate that the agency is required to, in effect, answer questions about its decisions or functions when responding to an access application. In Davison v NSW Department of Education and Training [2013] NSWADT 25 it was stated at [3]: [a]ccess requests made under the GIPA Act can only be made in regard to information that is held by the agency at the time the request is made. It is not a vehicle for seeking answers to questions a person might have in regard to administrative action taken by an agency.
I therefore merely observe that the date of 22 May 2017 is shortly after the date on which the child's appointment for Oral Imaging occurred at WCOH, is consistent with the previous informal responses, and there appears from Attachment C to be other waitlists and indeed other areas of WCOH other than the Orthodontics Clinic.

[16]

Questions 2 to 4 - was information "not held" by the respondent?

Under s 80(e) of the GIPA Act, the Tribunal has jurisdiction to review a decision by an agency that it does not hold the information requested. That section also confers jurisdiction on the Tribunal to review an "implicit decision" that no further information is held, beyond that which is dealt with in a decision: Amos v Central Coast Council [2018] NSWCATAD 101.
The respondent submits that it does not hold government information relating to:

Q2: the position the applicant's child was on the waitlist when first added to the list;
Q3: the length of time it will be before the applicant's child will be granted an appointment for orthodontic bracing treatment; and
Q4: the number of patients that attend WCOH on a monthly or yearly basis for bracing treatment.

"Government information" is defined in s 4 of the GIPA Act as "information contained in a record held by an agency". In Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288, the Tribunal found that "government information" was a reference to an existing record of information held by an agency, not a record that is not in existence but is capable of being produced.
Accordingly, if no record containing the requested information exists at the time when the application is made, a decision that the information is "not held" is appropriate.
In discharging the Respondent's burden of proof requiring that the Tribunal be satisfied that the information is "not held", the reasonableness of the search undertaken (s 53) operates as a 'plainly relevant factor': Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41].
Wojciechowska (at [44]) also stated: In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1)- (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
What constitutes a reasonable search will vary with the circumstances of each matter and depends upon the agency to whom the access application is made and on what terms it is made.
I am satisfied that reasonable searches were conducted by the respondent, as required by s 53 of the GIPA Act. I found Ms Profilio to be a truthful and credible witness and accept her factual evidence regarding the systems and the search undertaken. I am satisfied that the record keeping system of the respondent was such that the relevant "government information", if available, was located on the Titanium Solutions database (the Database). Ms Profilio obtained appropriate assistance from the Dental Information Officer and adequately explained to the Tribunal the functionalities and limitations of the Database, including those arising from a migration of data in 2019.

[17]

The original waitlist number of the child

The second question in the GIPA Application requested both the current and original waitlist number of the child.
I observe that the response in the Notice of Decision to the "current" waitlist number was released in full as Position 44 (as at 7 July 2023). During the proceedings, this was updated by way of Attachment D to Ms Profilio's statement, and was Position 26 as at 23 November 2023.
As to the "original" waitlist number of the child, I am satisfied on the balance of probabilities that the information is "not held" by the respondent. 1. I am satisfied that a reasonable search was undertaken for the purpose of s 53 of the GIPA Act, and that it is not currently possible to extract this information directly from the Database, for the reasons explained by Ms Profilio. 2. The respondent was not required to search electronic back-up records. The respondent's solicitor confirmed to the Tribunal at the hearing that no obligations of the respondent under the State Records Act 1998 or the agency's established record management procedures had been contravened for the purpose of s 53(4) of the GIPA Act. No evidence presented to me suggests otherwise. 3. I am satisfied that any "possibility" of locating the original position on the Waitlist is remote, even if such a search was undertaken. It would require bespoke computer programming and the recruitment of external technical assistance. These are resources which are not "reasonably available" to the respondent: see Kitson v Manly City Council [2015] NSWCATAD 102; Collection Point Pty Ltd v Federal Commissioner of Taxation (2013) 212 FCR 184; [2013] FCAFC 67 at [52]-[53]. 4. Nor is there any indication on the evidence presented that such a record exists. I observe that the screenshot now provided (see para 51 above) contains a field titled "Position in List", but the field reads "0", suggesting it is inactive. This is confirmed to my satisfaction by Ms Profilio's evidence that in order to ascertain the child's position on the Waitlist for the purpose of responding to the applicant's informal requests, an additional "first" column was manually added by her to the report generated by Titanium Solutions to record the position of each individual on the waitlist, based on the date on which they joined the list. She says this same process was adopted when WCOH advised the applicant of dates in earlier correspondence. 5. I am also satisfied that no additional evidence has emerged that might tend to prove that the requested information is held by the respondent.
I therefore find that the correct and preferable decision, on the balance of probabilities, is that no "government information" is held responsive to the child's position on the waitlist when first added to the list.

Parties

Applicant/Plaintiff:

GBV

Respondent/Defendant:

Western Sydney Local Health District

Cases Cited (12)

Administrative review jurisdiction of the Tribunal

The Tribunal's administrative review jurisdiction to review decisions of an agency is conferred (and limited) by provisions of the GIPA Act, the CAT Act and the Administrative Decisions Review Act 1997 (ADR Act).
Under s 55 of the ADR Act, the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the tribunal has administrative review jurisdiction". Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision made by the administrator: 1. in the exercise of functions conferred or imposed by or under the legislation, or 2. in the exercise of any other functions of the administrator identified by the legislation."
Relevantly, the GIPA Act is the "enabling legislation" for the purpose of s 9 of the ADR Act. And under the GIPA Act: 1. a person aggrieved by a "reviewable decision" may seek administrative review of that decision by the Tribunal: s 100; 2. a "reviewable decision" is defined in s 80. In the circumstances of these proceedings: 1. a decision by the agency to provide access or refuse to provide access to information requested is a reviewable decision: s 80(d); and 2. a decision that government information is not held by the agency is a reviewable decision: s 80(e).
The Tribunal may dismiss at any stage any proceedings before it if it considers that the proceedings are "frivolous or vexatious or otherwise misconceived or lacking in substance": s 55(1)(b) of the CAT Act.
The Tribunal's function on a review under s 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any written or unwritten law as though it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. The Tribunal may affirm, vary, or set aside the decision made by the agency and make a substitute decision, or set aside the decision and remit it to the agency for reconsideration in accordance with any directions or recommendations of the Tribunal. The time at which the determination is to be made as to the correct and preferable decision is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
The burden of proof falls on the agency to establish that its decision is justified: s 105 of the GIPA Act.

(2013) 212 FCR 184