The applicant applied to the respondent ("the Pharmacy Council"), under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"), for information contained in a complaint made about her. The Pharmacy Council decided to provide her with access to some of the information within the complaint and refuse access to the remainder.
The complainant has been joined to these proceedings. The Tribunal made orders to enable it to determine the preliminary issue of whether the complainant has discharged the onus of establishing that particular public interest considerations against disclosure of the information contained in the complaint, upon which the complainant relies, apply in the circumstances of the case.
[2]
BACKGROUND
The applicant is a pharmacist. She became aware that a complaint had been made about her to the Pharmacy Council concerning her self-reporting of continuing professional development ("CPD") points. That complaint was later withdrawn and the applicant denies that there is any substance to the complaint.
The applicant applied to the Pharmacy Council for information contained in the complaint, under the GIPA Act.
The Pharmacy Council consulted with the complainant, pursuant to s 54(1) of the GIPA Act. The complainant objected to disclosure of all of the information contained in the complaint on the basis that it was the complainant's personal information.
On 16 May 2014, the Pharmacy Council made two decisions under the GIPA Act. One of these decisions was to refuse access to some of the information the subject of the applicant's application, pursuant to s 58(1)(d) of the GIPA Act. The other decision was to provide the applicant with access to the remainder of the information, pursuant to s 58(1)(a) of the GIPA Act. The Pharmacy Council decided to provide the applicant with a copy of records containing the information in redacted form, pursuant to s 74 of the GIPA Act.
The Notice of Decision indicated that, because the complainant had 40 working days to apply for a review of the decision, the information would not be disclosed to the applicant until the end of that period and then only if the complainant did not seek review (see GIPA Act, s 54(6)).
The complainant applied for an internal review of the Pharmacy Council's decision to provide access to information on 8 June 2014. This was the decision by which the complainant was aggrieved (see GIPA Act, s 82(1)).
On 30 June 2014, the internal review officer determined that some of the information to which it had decided to provide access should be provided to the applicant by making a new record of the information, purportedly in accordance with s 75 of the GIPA Act. The internal review officer determined to do this by redacting the handwritten information on the complaint form and replacing it with typed text. The internal review officer did not explain why this was done.
The internal review was apparently undertaken on the assumption that the internal review officer's task was to review both the decision to provide access and the decision to refuse access. In my view, it was only the decision to provide access which was the subject of review. However, it does not appear that the internal review officer purported to revise the original decision to refuse access to certain information within the complaint.
The complainant then applied to the Information Commissioner for a review of the decision made on internal review to provide access (GIPA Act, ss 89(1), 90).
On 13 October 2014, before the Information Commissioner had completed the review, the applicant applied to this Tribunal for a review. The applicant identified the decision of which she was seeking review as being the Pharmacy Council's decision of 30 June 2014.
The complainant was joined as a party to the proceedings and the Information Commissioner exercised her right to appear and be heard in the proceedings (GIPA Act, s 104(1)). As the complainant's identity is part of the information sought by the applicant, the Tribunal made orders pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") prohibiting the disclosure of the complainant's name generally and also prohibiting the disclosure of the complainant's name to the applicant.
The complainant has filed written submissions and evidence which have been served on the parties and the applicant's legal representative. The applicant's legal representative has undertaken not to disclose the complainant's identity to the applicant.
The complainant consented to the matter being determined on the papers and said that the complainant did not wish to take any further part in the proceedings. The complainant may, of course, choose to participate in the proceedings again at any time.
The Tribunal has power to determine its own procedure pursuant to s 38(1) of the NCAT Act. The Tribunal determined to make a preliminary decision as to whether the complainant had discharged the onus of establishing that any of the public interest considerations against disclosure, on which the complainant relies, apply. If not, then it would not be necessary for the other parties to reply. If, on the other hand, the complainant had made an arguable case in relation to one or more public interest considerations, the other parties would then be given an opportunity to respond to that part of the complainant's case. The Pharmacy Council consented to proceeding in this way.
After the Tribunal had reserved its decision, it communicated to the parties a concern that the Pharmacy Council's decision to provide the applicant with access to information may not be before it, on the basis that this is not a decision by which the applicant is aggrieved. Up until this point, the Tribunal had been of the view that the application before the Tribunal comprised both decisions made by the Pharmacy Council, and that the applicant's application to the Tribunal brought to an end the Information Commissioner's review of the decision to provide access, pursuant to ss 98 and 101(3) of the GIPA Act.
On 13 October 2015, with the complainant's consent, the Information Commissioner referred the Pharmacy Council's decision to provide access to information for an administrative review by the Tribunal, pursuant to s 99 of the GIPA Act, should this be necessary.
[3]
DECISIONS THE SUBJECT OF REVIEW
The first issue is which decisions are before the Tribunal for review.
The applicant's application to the Tribunal seeks review of the internal review decision of 30 June 2014. As indicated earlier, in my view, the scope of that review was limited to a review of the Pharmacy Council's decision of 16 May 2014 to provide access to information, because that is the only decision by which the complainant was aggrieved (see GIPA Act, s 82(1)). However, the internal review decision is written as if it were a review of both the decision to provide access and the decision to refuse access.
It is relevant that s 81 of the GIPA Act provides that, when more than one reviewable decision is made in respect of a particular access application and those decisions are made at different times, the period within which a person may apply for a review of any of those decisions is extended to the end of the review period for the last of those decisions. What this means is that the time in which the applicant had a right to apply to the Tribunal for a review of the decision made on 16 May 2014 to refuse access to information was extended, by operation of s 81, when the internal review determination of 30 June 2014 was given to her.
Subject to the question of whether the application was lodged within time, to which I will return, I am satisfied that, notwithstanding that the applicant's application to the Tribunal was expressed to seek review of the internal review decision of 30 June 2014, it in substance sought review of the decision of 16 May 2014 to refuse access to information (which was repeated in the decision of 30 June 2014), as well as the decision of 30 June 2014 that the applicant's access to much of the remaining information was to be to a new record of that information.
There is some doubt as to whether the decision of 30 June 2014 of which the applicant seeks review is properly characterised as a decision to provide access pursuant to s 80(d) of the GIPA Act, a decision to refuse access pursuant to s 80(d), or a decision to provide access to information in a particular way in response to an access application, pursuant to s 80(i). It is also doubtful that, to the extent that the decision is properly characterised as a decision to provide access, the applicant is aggrieved by that decision. In any event, I am satisfied that, as the Information Commissioner has referred the Pharmacy Council's decision to provide access to information for an administrative review by the Tribunal, pursuant to s 99 of the GIPA Act, that decision is also before the Tribunal, subject to the question as to whether the application was lodged within time.
[4]
WAS THE ACCESS APPLICATION LODGED WITHIN TIME?
Subsections 101(1) to (3) of the GIPA Act provide:
"101 Time for applying for NCAT administrative review
(1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).
(2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review.
(3) If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end."
The applicant states on her application form that she received the internal review determination on 30 June 2014. The internal review determination stated that: "You have 40 days from the date of this Notice to apply for a review by the Information Commissioner or the NCAT." Forty working days from that date is, on my calculation, around 26 August 2014. The applicant made her application to the Tribunal on 13 October 2014.
The applicant indicated on the application form that the application was lodged within the time allowed under the relevant legislation. She provided the following explanation:
"More than one reviewable decision was made and each was expressed to be subject to the expiration of a third party review time limit ending on 25 August 2014. Accordingly, under s 81, GIPA Act, the time period within which a review of the decisions may be sought by the applicant is 40 working days from and including 28 August 2014 and expires on 28 October 2014."
The applicant's reference to the decisions being expressed to be "subject to the expiration of a third party review time limit" is to the internal reviewer's notification in the internal review determination that "the third party has 40 working days to ask for a review and I cannot release the information to you while their review rights are pending, or while the decision is under review."
The prohibition on releasing the information while review rights are pending is found in s 54(6) of the GIPA Act, which provides as follows:
"(6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending."
In my view, there is a real question as to whether, on the proper construction of s 101 of the GIPA Act, the applicant was required to apply to the Tribunal within 40 days of receiving notice of the internal review determination or, as she claims, within 40 days of the expiration of the complainant's review rights.
If the application was lodged out of time, the Tribunal does not have jurisdiction to hear and determine it unless the applicant applies, in writing, for an extension of time and the Tribunal is of the opinion that the applicant has provided a reasonable excuse for the delay in making the application (GIPA Act, s 101(4) to (6); Administrative Decisions Review Act 1997 (NSW), s 9(1) and (2)).
As this jurisdictional issue has not been determined, the Tribunal is not in a position to determine whether the complainant has discharged the onus of establishing that any of the public interest considerations against disclosure which the complainant has raised, apply.
[5]
FURTHER STEPS
In order to determine the jurisdictional issue, the Tribunal will make orders giving the applicant an opportunity to make submissions as to whether her application was made within time. The Tribunal will also give the applicant an opportunity to lodge an application for an extension of time, and to provide submissions and evidence in support of that application, in case the Tribunal finds that her application was not made within time. The other parties will be given an opportunity to respond to the applicant's submissions and to any application she makes.
All parties and the Information Commissioner should also address, in their submissions, the issue of whether the issues for determination can be adequately determined in the absence of the parties by the Tribunal considering any written submissions or any other documents or material lodged with or provided to the Tribunal (see NCAT Act, s 50(2) and (3)).
After the parties and Information Commissioner have had an opportunity to file and exchange submissions and evidence, the Tribunal will decide whether to determine on the papers the questions of whether the applicant's application was made within time and, if not, whether to accept any application for leave to make the application out of time. If it determines on the papers that it has jurisdiction to consider the application (either because the application was made within time or because it gives leave for the late filing of the application), then the Tribunal will proceed to determine on the papers the question of whether the complainant has discharged the onus of establishing that one or more public interest considerations against disclosure apply and, if so, which considerations.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 06 November 2015