GBV v Western Sydney Local Health District

Evidence of the Respondent

1. The respondent relied on a statement of Ms Dhana Profilio (Ms Profilio) affirmed on 5 March 2024. The statement included four attachments.
2. Ms Profilio also appeared in person before the Tribunal. She swore that her statement was true and correct. Relevant facts from her statement, as supplemented by her oral evidence, are set out below.
3. There were no relevant objections to the evidence presented by Ms Profilio.

WCOH

1. WCOH is a business unit of WSLHD. It provides general dental services to the eligible population of Western Sydney and specialist dental services to residents of NSW.

Role of Ms Profilio

1. Ms Profilio is the Privacy and Information Compliance Manager of the Corporate Records Unit of WSLHD. She assisted WCOH in responding to the various requests for information made by GBV since March 2023, and had oversight of the processing of his application under the GIPA Act for information held by WSLHD which resulted in the issue of the Notice of Decision.

The Orthodontic Waitlist

1. WCOH uses the program Titanium Solutions for the maintenance of waitlists for treatments.
2. Patients are added to the waitlist for treatment when they are deemed eligible by the specialist.
3. 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.
4. 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]
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

Length of time to get an appointment for bracing treatment

1. Ms Profilio said that there is no record held that gives a time-frame for when the child will be given an appointment for bracing treatment. At this time, WSLHD does not know when that will occur. The timing will depend on a variety of factors, including the length of further care required by patients who have already started treatment, or who are ahead of the child. The timing of a patient's treatment may depend on factors other than their position on a wait list. For example, if a patient is schedule for surgery and requires orthodontic treatment before the surgery, it may be necessary to prioritise that patient's treatment. The length of time of each patient's treatment in turn depends on various factors, including complexity of the case, patient compliance and regular attendance. The combination of these factors varies between patients because they are unique, and treatment is individualised.
2. She noted that GBV was provided with general information about average periods of treatment and review for fixed orthodontic (braces) treatment and the number of bracing treatments performed in a year. However, she cautioned that even with this information it is not possible to provide any reliable indication as to when the child will be given an appointment, due to the variables identified above.

Number of patients attending WCOH on a monthly or yearly basis for bracing treatment to determine [child's] appointment

1. Ms Profilio said that WCOH does not produce, as part of its standard reporting functions, reports which record the number of patients attending for bracing treatment on a monthly or annual basis. She conferred with the Dental Information Officer to gain satisfaction that there were no existing records or reports that contain this information.
2. She said that WCOH does maintain records of the number of bracing treatments it provides on an annual basis, and provided the most recent (2022/23) figures to the applicant as part of its response to his application. However, these figures do not reflect the number of patients receiving treatment over that period. That is because of the nature of bracing treatment which can take up to six years and require up to 30 treatments for an individual patient.
3. In order to produce a record which reflects the number of patients treated for orthodontic bracing in a specified period, she said it would be necessary to write and prepare a new code to facilitate the manual extraction of this information from WCOH's database. It is not possible to produce such a report using any of the existing reporting functions available to WCOH.

Oral evidence of Ms Profilio

1. Ms Profilio gave oral evidence in clarification of a number of points.
2. In respect of Attachment D to her statement, she said: 1. the information in all columns other than the first column comprised data extracted from the Titanium Solutions database into a spreadsheet; 2. she had inserted a new first column to assign a number to each patient on the waitlist. The column headed "Waitlist date listed" was the date that the patient was placed on the waiting list. This column was listed in ascending date order and therefore determined the numbering of the first column to generate the waitlist number for the child; and 3. the column headed "Assigned Date" was the date the record was last updated.
3. She confirmed to the Tribunal that no other responsive information to GBV's requests had come to her attention subsequent to the date of her statement.

Issue 1 - Extension of Time

1. The respondent gave the Notice of Decision to GBV on 18 July 2023. GBV filed the application for review with the Tribunal on 8 November 2023, which was 81 working days after receipt. This is outside the 40 working day time prescribed by s 101(1) of the GIPA Act.
2. As permitted by s 101(5), I dispense with the requirement for GBV to make a written application for an extension of time. This was not opposed by the respondent.
3. I must therefore consider whether GBV has provided a reasonable excuse for the delay: s 101(4).
4. Having regard to the facts set out above, I am satisfied that GBV has provided a reasonable excuse for the delay. Following the issue of the Notice of Decision, he sought to resolve his concerns through the meeting held on 31 August 2023. When that failed, he sought assistance from the Tribunal to understand the process to prepare and file the application. GBV prepared and provided documentary evidence and submissions when the application was filed; although not required at this point in time, it was in accordance with his understanding. Having read through these documents, I accept this would have taken time for him to prepare and compile.
5. In reaching this decision, I have had no regard to the merits of the claim, any prejudice to either party or the public interest, as these are not relevant: Turner v Commissioner of Police (NSW) [2014] NSWCATAP 4 at [18].

Issue 2 - The relief sought by the applicant (Jurisdiction of the Tribunal)

1. GBV, as part of the grounds in his application, asks the Tribunal to "order WCOH to commence [his child's] orthodontic treatment immediately".

Applicant's Submissions

1. GBV's submissions regarding the jurisdiction of the Tribunal stated "the Applicant submits that NCAT has jurisdiction to have this claim". No further legal submissions were made regarding the relief sought.

Respondent's Submissions

1. The respondent submitted that to the extent that the application for review sought this relief, it was misconceived and should be dismissed pursuant to s 55(1)(b) of the CAT Act.
2. In summary, the respondent submitted that the outcome GBV was seeking: 1. was extraneous to the scope of the GIPA Application he submitted to the respondent; 2. was unable to be reviewed by the Tribunal because it did not form part of the GIPA application; and 3. therefore the Tribunal did not have jurisdiction to direct WSLHD to commence treatment on any patient.
3. The respondent cited Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson) at [24], and cases subsequently citing that case, in support of its submission that the GIPA Act cannot be used as an avenue for obtaining the more substantive relief sought by GBV.

Consideration

1. There is no jurisdiction conferred on the Tribunal to direct the respondent (or WCOH) "to start [child's] orthodontic treatment immediately" for the following reasons: 1. The administrative review jurisdiction is specifically conferred (and limited) by the legislative provisions set out above (at paragraphs 15 ff). 2. This request made to the Tribunal by GBV did not form part of his GIPA Application. The Tribunal's jurisdiction is limited to a review of the respondent's Notice of Decision in respect of the application made to it, and only then in respect of identified "reviewable decisions". 3. It is established that an applicant cannot, after the application has been dealt with by the agency, widen the scope of the process: see OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13] to [14]. 4. I accept the submissions of the respondent that proceedings under the GIPA Act should not be used "as a vehicle for the collateral review of the merits or validity of official action". Crewdson at [24]; Raven v University of Sydney [2015] NSWCATAD 104 at [45]. Nor can these proceedings be an avenue for obtaining the more substantive relief that GBV now seeks regarding the scheduling of bracing treatment for his child.
2. I therefore conclude that this aspect of the application by GBV is misconceived or lacking in substance. There is no "reviewable decision" under the GIPA Act, and therefore no "administratively reviewable decision" under the ADR Act. As a result, I make orders below to dismiss the application to this extent under s 55(1)(b) of the CAT Act.

Issue 3 - Review of the responses provided

1. WSLHD is an "agency" as defined in the GIPA Act, s 4. It is a body corporate constituted under s 17 and specified in Schedule 1 of the Health Services Act 1997. It is an agency to which the GIPA Act applies because it is a "public authority" within the meaning of paragraph (c) of the definition of "agency" contained in s 4 and clause 2(1)(b) of Schedule 4 of the GIPA Act, being a body established for a public purpose under the provisions of a legislative instrument. Accordingly, it had a statutory obligation to receive and determine GBV's application.

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

1. 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.
2. 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.
3. 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.

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

1. 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.
2. 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.

1. "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.
2. 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.
3. 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].
4. 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.
5. 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.
6. 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.

The original waitlist number of the child

1. The second question in the GIPA Application requested both the current and original waitlist number of the child.
2. 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.
3. 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.
4. 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.

How long it will take to get the appointment for the bracing treatment

1. GBV in his written and oral submissions set out in some detail his engagement with WCOH over an extended period regarding the timeframe for his child's bracing treatment.
2. The respondent submits that this question does not seek access to existing information or records of the respondent but, rather, seeks answers from the respondent as to the expected timing of his son's treatment or, perhaps more substantively, an undertaking from the agency that treatment will be provided within a particular time-frame. It submits that the GIPA Act is not a vehicle for seeking answers to such questions, nor is it an avenue by which an agency can be asked to provide commitments as to the future provision of services. I accept the submissions of the respondent.
3. I am also satisfied on the balance of probabilities, based on the searches undertaken, the screenshot, the spreadsheet prepared by Ms Profilio, and the evidence presented, that there is no existing record that provides an answer to the question asked. I conclude that reasonable searches were undertaken, and no additional evidence emerged that might tend to prove that the requested information is held by the respondent.
4. Further, the reasons provided in prior correspondence to GBV, and the Notice of Decision, provide a consistent and understandable explanation why the information would not exist in the records of the respondent.
5. 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.

The number of patients that attend WCOH on a monthly or yearly basis for bracing treatment

1. I accept the evidence of Ms Profilio that WCOH does not produce, as part of its standard reporting functions, reports as to how many patients receive bracing treatment in a given month or year.
2. I am satisfied that reasonable searches were undertaken and that on the balance of probabilities the respondent does not hold existing records that are responsive to this question.
3. Section 75(2) of the GIPA Act confirms that an agency is not required to create a new record "by deduction, inference or calculation from information held by the agency".
4. To the extent that the respondent does hold records as to annual numbers of bracing treatments (not patients), that information was provided to the applicant as permitted (but not mandated) by s. 75 of the GIPA Act. The respondent makes the following points regarding this information: 1. Noting that the applicant's apparent motivation in seeking this information is to allow him to ascertain when his son will receive bracing treatment, these figures are of limited assistance: see Ex R1 at paras [29]-[30], [32]; 2. The same difficulties would arise, even if the respondent was able to provide the applicant with figures as to the number of patients receiving treatment.

Conclusion as to whether information is "held"

1. I am satisfied that the respondent has discharged its onus of establishing that reasonable searches have been conducted for "government information" that falls within the scope of the applicant's GIPA Application, such that there is an unlikelihood that any further information within its scope is held.
2. In my view, the correct and preferable decision is to affirm the respondent's decision dated 18 July 2023.

Orders

1. I make the following orders: 1. The applicant is granted an extension of time under s 101(4) of the GIPA Act to file the application to the Tribunal. 2. To the extent the application requests the Tribunal to "order WCOH to start [child's] orthodontic treatment immediately", the application is dismissed under s 55(1)(b) of the CAT Act. 3. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 24 April 2024