Marden v Pharmacy Council of New South Wales

NCAT Administrative and Equal Opportunity|2017-01-19|Before: Dr J

BACKGROUND

The applicant is the chief pharmacist at a hospital in Sydney. An individual made allegations about her to the Australian Health Practitioner Regulation Agency ("AHPRA") in 2014 concerning her self-reporting of continuing professional development ("CPD") points. This was in the form of a mandatory notification under the Health Practitioner Regulation National Law (NSW). For convenience, I will refer to this individual as "the complainant."
AHPRA referred the notification to the Health Care Complaints Commission ("HCCC"). The HCCC, in turn, referred the matter to the first respondent ("the Pharmacy Council"). The Pharmacy Council has a role in the professional discipline of pharmacists (see Health Practitioner Regulation National Law (NSW), s 41B and Part 8).
In March 2014, the Pharmacy Council notified the applicant that it was in receipt of allegations against her and required her to provide certain information. It did not provide the applicant with a copy of the complaint and ultimately refused to do so when the applicant requested a copy.
The applicant applied to the Pharmacy Council under the GIPA Act for information contained in the complaint. 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 a record containing the information in redacted form, pursuant to s 74 of the GIPA Act.
In early June 2014, the complainant applied for an internal review of the Pharmacy Council's decision to provide access to information contained in the complaint.

CONDUCT OF REVIEW

The complainant's identity is part of the information sought by the applicant and both the complainant and the Pharmacy Council contend that there is an overriding public interest against disclosure of this information. The Tribunal is under a duty to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure (GIPA Act, s 107(1)).
In order that the review could be conducted without disclosing the complainant's identity to the applicant, whilst still providing procedural fairness to all parties, the applicant's solicitor, Ms Mills, undertook not to disclose the complainant's identity to the applicant. This enabled the complainant to serve Ms Mills with confidential evidence and submissions, and for Ms Mills to respond on behalf of the applicant. The Tribunal has made orders prohibiting the disclosure of the complainant's name to the applicant or anyone else, pursuant to s 64 of the NCAT Act. The Tribunal has also made orders prohibiting the publication of the redacted paragraphs in this decision, also pursuant to s 64 of the NCAT Act, so as to comply with its duty under s 107 of the GIPA Act.

PREVIOUS DECISIONS

This matter has been decided in several stages.
In Marden v Pharmacy Council of NSW [2016] NSWCATAD 86, I decided that the complainant had not established a prima facie case for the application of any of the public interest considerations against disclosure upon which the complainant relied, with the exception of the public interest consideration in cl 3(a) of the table to s 14 of the GIPA Act. That is, the complainant had established a prima facie case that disclosure of the information could reasonably be expected to reveal an individual's personal information.
At paragraph 75 of that decision, I identified the remaining issues to be determined as being: "(1) the identification of any public interest considerations in favour of disclosure; (2) the identification of any personal factors of the application; (3) the question of whether the public interest consideration against disclosure in cl 3(a) applies to any of the information; (4) whether there is an overriding public interest against disclosure of any of the information sought; (5) whether the correct and preferable decision is to provide access to any of the information in typed form (so concealing the complainant's handwriting)."
This decision considers those issues.

RELEVANT LEGISLATION

The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)).
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5).
A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).
Subsections 14(1) and (2) of the GIPA Act provide: "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."
Pursuant to cl 3(a) of the table in s 14, there is a public interest against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. "Personal information" is relevantly defined to mean "information or an opinion … about an individual … whose identity is apparent or can reasonably be ascertained from the information or opinion" (GIPA Act, Sch 4, cl 4(1)). To "reveal" information "means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)" (GIPA Act, Sch 4, cl 1).
Section 15 of the GIPA Act provides for the principles which apply when determining whether there is an overriding public interest against disclosure, as follows: "15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information."
"GIPA Guideline 4 - Personal information as public interest consideration under the GIPA Act" ("Guideline 4") is a guideline issued by the Information Commissioner within s 15(b) of the GIPA Act.
The personal factors of an application may be taken into account in favour of providing an applicant with information, or in determining whether there is an overriding public interest against disclosure of the information, in accordance with s 55 of the GIPA Act. Those personal factors are (s 55(1)): "(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."
The burden of establishing that its decision to refuse access to information is justified lies on the Pharmacy Council (GIPA Act, s 105(1)). The complainant has the burden of establishing that there is an overriding public interest against disclosure of the information to which the Pharmacy Council granted access (GIPA Act, s 105(2)). This is because the complainant is an "applicant for review" of the decision to grant access within s 105(2) of the GIPA Act, the complainant's application to the Information Commissioner having been referred to the Tribunal.
The applicant is a person aggrieved by the Pharmacy Council's decision who is entitled to apply to the Tribunal: GIPA Act, s 100, Administrative Decisions Review Act 1997 (NSW), s 9, NCAT Act, s 30(1).
The Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it: Administrative Decisions Review Act, s 63(1).

Personal factors of the application

The personal factors of the application may be taken into account as factors in favour of providing the applicant with access to the information sought (GIPA Act, s 55(1) and (2)). They may also be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to a consideration of, relevantly, whether the disclosure of the information concerned could reasonably be expected to reveal an individual's personal information (GIPA Act, s 14, table, cl 3(a); s 55(3)).

Personal factors in favour of disclosure

The applicant's solicitor referred in her submissions to information about the complainant and the applicant which she said constituted personal factors of the application which favoured disclosure. She did not, in her primary submissions, explain how the information met the description of any of the paragraphs in s 55(1) of the GIPA Act. The reply submissions suggest that the applicant relies upon all three paragraphs of s 55(1). The applicant relies upon her identity as a pharmacist identified by name in the complaint (s 55(1)(a)) and says that her motive for making the access application was to obtain a copy of the complaint made against her as a matter of procedural fairness (s 55(1)(b)).
The applicant also submits that as a highly respected professional who has never had a complaint made against her before, she should have a right to access the complaint so she may exercise rights to amend the information if necessary. She says, further, that she has a legitimate interest as a professional and supervisor in making any adjustments to work process, procedure or policy which may arise out of the complaint. The applicant's solicitor did not identify which paragraph of s 55(1) these factors were said to be relevant to, but presumably it was s 55(1)(c) (that is, "any other factors particular to the applicant").
The Pharmacy Council submitted that the personal factors of the application should be considered, including that the complaint contains allegations about the applicant's professional capacity and conduct as a registered pharmacist. So much may be accepted.
I accept that the applicant's identity as a pharmacist is a personal factor in favour of disclosure, pursuant to s 55(1)(a) and (2), given the nature of the complaint and that the information is held by a body with responsibility for the professional discipline of pharmacists. I also accept that the applicant's motive for making the access is a personal factor in favour of disclosure, pursuant to s 55(1)(b) and (2). However, the motive relied upon is relevant only insofar as disclosure of the information is required to comply with the rules of procedural fairness. The procedural fairness issue is dealt with below, as a public interest consideration in favour of disclosure.
I do not consider that the applicant's right to exercise amendment or correction rights in relation to her personal information in the complaint is a personal factor of the application. The right to access and correct personal information is given to individuals generally under s 14 and 15 of the Privacy and Personal Information Protection Act 1998 (NSW), and is not a right particular to the applicant. There is a public interest in the disclosure of her personal information to her; there may also be a public interest in disclosing personal information to her for the purpose of amending it if necessary, but this is merely a version of the first-recognised public interest. If I am wrong about the right to amend not being a personal factor of the application, this right would not necessarily extend to all parts of the form such as those comprising the complainant's personal information. In any event, there is no evidence that the applicant is a highly respected professional who has never had a complaint made against her before, which is the basis on which the applicant makes her claim.
The applicant has not explained how access to the information would assist her as a supervisor or in her professional work. The complaint was about an alleged breach of the applicant's personal obligation to obtain CPD points (and was unsubstantiated). Given the nature of the complaint, it is unlikely that information in the complaint could assist in supervising others. I am not persuaded that it could and do not take this into account as a personal factor favouring disclosure.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

Personal factors against disclosure

The complainant did not refer to s 55 of the GIPA Act or submit that there were any personal factors of the application which could be taken into account as factors against providing access, using that language. The applicant submits that, for this reason, the Tribunal should not have regard to any personal factors which tend against providing access. However, the complainant did make a submission which referred, in substance, to personal factors of the application. The applicant's solicitor has responded to this submission, in substance. The Tribunal has decided to take the complainant's submission into account, characterising it as a submission about a personal factor of the application (see NCAT Act, s 38(2), (4) and (5)(c)).
[NOT FOR PUBLICATION]

Public interest considerations in favour of disclosure

As indicated above, there is a general public interest in favour of disclosure (GIPA Act, s 12(1)).
The applicant submits that it is not necessary to identify public interest considerations in favour of disclosure unless there is a public interest consideration against disclosure. However, she also submits that the applicant is entitled to a copy of the complaint in the circumstances in accordance with s 12(1) of the GIPA Act because "it is clear that the complaint concerns her, her professional competence and her right to practice as a pharmacist and falls squarely within example (d) of s.12(2), GIPA…". Section 12(2) provides that nothing limits the public interest considerations in favour of disclosure which may be taken into account, and example (d), an example of a public interest consideration in favour of disclosure, is: "The information is personal information of the person to whom it is to be disclosed".
The applicant also submits that there is a public interest in practitioners being accorded due process and natural justice in responding to complaints made against them, which is expressly recognised by s 16 of the Health Care Complaints Act 1993 (NSW). I accept that a public interest consideration in favour of disclosure of information is the provision of a practitioner with procedural fairness in respect of a complaint made against her.
Whilst both of these public interest considerations in favour of disclosure apply to some of the information sought by the applicant, they do not apply to all of it. It is thus necessary to consider whether the information sought by the applicant is her personal information and how much information it would be necessary to provide her with to satisfy the Pharmacy Council's obligation to provide her with procedural fairness.

Information comprising the applicant's personal information

The complaint is made on a standard AHPRA form entitled "Notification (complaint)." I do not understand either party to contend that the standard form itself contains personal information. I find that it does not.
The form is filled out with the complainant's role in the notification, name, date of birth, telephone number and address in questions 2 to 5. Except for the response to the first part of question 2, this is the complainant's personal information. With the exception of the response to the second part of question 2, the information is not "about" the applicant and the applicant's identity is not apparent and cannot reasonably be ascertained from the information. Accordingly, the responses to questions 3 to 5 do not contain the applicant's personal information (GIPA Act, Sch 4, cl 4(1)). The response to the second part of question 2 does contain the applicant's personal information, for the same reasons (given confidentially below) that it comprises the complainant's personal information.
Page 3 of the form contains a question, being "Who is the health practitioner / student this notification is about?" The information provided in response is about the applicant and her identity can reasonably be ascertained from this information. Accordingly, it is her personal information.
The substance of the complaint is contained in the responses to questions 18 and 21. This is the applicant's personal information because it is about her and her identity can reasonably be ascertained from the information.
The responses to questions 15, 16, 20 and 23 also contain the applicant's personal information. The responses in the remainder of the form do not.
There is a public interest in disclosure of the information which is the applicant's personal information (as identified above).

Information required to be provided by rules of procedural fairness

The rules of procedural fairness require a decision-maker to provide an individual with adverse information that is credible, relevant and significant to the decision to be made (Kioa v West (1985) 159 CLR 550; Brennan J at 629; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 ("VEAL"), Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at 95 [15] to 96 [17]). The decision-maker is required to disclose the substance of allegations against the individual (VEAL at 99 [27]). The rules of procedural fairness do not, generally, require the decision-maker to provide the individual with the identity of the complainant (see discussion in VEAL at 98 [25] to 100 [29]). I find that, to the extent that the rules of procedural fairness applied in this case, they did not require the Pharmacy Council to provide the applicant with the complainant's identity or contact details. Thus, the public interest consideration in favour of disclosure identified above (concerning procedural fairness) only applies to the extent that the information comprised the substance of allegations against the applicant.
The applicant submits in her primary submissions that the Pharmacy Council's handling of the complaint, in breach of the rules of procedural fairness, forms part of the personal factors of the application. She says that the Pharmacy Council effectively required her to show cause as to the matters raised in the complaint. She alleges that the Council refused to provide the applicant with a copy of the complaint and proceeded with its investigation into the complaint, in breach of the applicant's right to procedural fairness. It then determined not to take any further action in respect of the complaint but noted that documents relating to the matter would be retained and the Pharmacy Council might refer to them in the event of any further complaint. The applicant submits that the reasonable inference to be drawn from this is that, in the event the Pharmacy Council receives any further complaints about the applicant, it will reconsider the matters raised in the complainant's complaint.
The applicant submits that the circumstance that the investigation has been concluded does not alter her legally enforceable right to access the complaint. Neither the complainant nor the Pharmacy Council submitted that, once an investigation into a complaint has concluded, there is no longer a public interest in providing an individual with the substance of the complaint as a matter of procedural fairness. Accordingly, I accept, for the purposes of these proceedings, that there is a public interest in the disclosure of this information to the applicant.

Personal information as a public interest consideration against disclosure (GIPA Act, s 14, table, cl 3(a))

The complainant submits that disclosure of the information contained within the complaint could reasonably be expected to reveal the complainant's personal information. In Marden v Pharmacy Council of NSW [2016] NSWCATAD 86 at [50], I found that "the complainant has established a prima facie case that the material in section 16, the first sentence of the typed material in section 21 and all of the material in section 23 [of the complaint form] could reasonably be expected to reveal the complainant's identity, and thus to reveal the complainant's personal information."
The applicant submits that the information in the complaint, including in the responses to questions 16, 21 and 23, is not personal information. The basis upon which this is argued is as follows: 1. In New South Wales there is an exclusive legislative scheme for dealing with complaints against pharmacists, and they are deemed to have been made to the HCCC even if they were in fact made to AHPRA (see Health Care Complaints Act); 2. The fact that New South Wales operates under its own exclusive code, outside the national complaints scheme, is expressly acknowledged by AHPRA in its standard notification form, which was used by the complainant, and in its guide for making complaints on its website; 3. The HCCC, on receipt of a complaint, must make details of the complaint including the identity of the complainant available to the pharmacist the subject of the complaint, unless an exception applies (Health Care Complaints Act, s 16(1)); 4. The HCCC is not required to make details of the complaint available if it appears on reasonable grounds that doing so would place a person at risk of intimidation or harassment (Health Care Complaints Act, s 16(4)); however, the HCCC must make those details available if necessary to comply with the principles of natural justice or for other specified reasons (Health Care Complaints Act, s 16(5)); 5. A guide to making complaints about health practitioners on AHPRA's website states: "We must provide a copy of your notification to the practitioner you are concerned about unless there is a risk to your safety if we do"; 6. AHPRA's notification form contains a declaration requiring the notifier to sign the form declaring that the notifier is "aware that AHPRA may send this form and attachments to the health practitioner"; 7. The Pharmacy Council includes warnings to similar effect in its guide to making complaints; 8. The information which the complainant included on the complaint or notification form is, in the applicant's submission, "subject to the exclusive statutory scheme in NSW which operates on the basis that the complainant's identity must be provided to the practitioner irrespective of the fact that it might otherwise constitute 'personal information' under GIPA and the [Privacy and Personal Information Protection Act]"; 9. The information was unsolicited (so is not personal information under the privacy legislation); 10. It follows that the applicant should have been provided with details of the complaint and the identity of the complainant pursuant to s 16(1) of the Health Care Complaints Act, or s 16(5)(a) as a matter of natural justice; and 11. It also follows from the above that the information in the complaint is not "personal information" as such and the complainant has not discharged the requisite onus with respect to the personal information consideration against disclosure.
The applicant makes the alternative submission that a later Act does not override an earlier Act, except by express words or necessary intendment. It follows, in the applicant's submission, that the GIPA Act does not override the Health Care Complaints Act. She submits that denying the applicant access to the original complaint and, in particular, the identity of the complainant under s 14(2) of the GIPA Act, conflicts with s 16(1) of the Health Care Complaints Act and undermines the legislative purpose of that Act.
It is not necessary, for the purposes of deciding whether the information contained in the AHPRA Notification (Complaints) form is "personal information," to determine whether the applicant was in fact entitled to be provided with details of the complaint and/or the identity of the complainant under the Health Care Complaints Act. The question for the Tribunal is whether the information sought falls within the statutory definition of the term "personal information" in the GIPA Act. This definition is set out above in paragraph 29. The question is to be answered by considering whether the information or opinion is "about" an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. The exceptions to the definition do not apply in the circumstances of this case and the applicant has not contended that they do (see GIPA Act, Sch 4, cl 4(3)).
Notwithstanding that the applicant's primary submission concerning the operation of the scheme in the Health Care Complaints Act is not relevant to whether the information sought is in fact personal information, I will consider the applicant's submission in detail. This is because, if the applicant's analysis is correct, this could be relevant to her alternative submission (that denying the applicant access to the complaint conflicts with s 16(1) of the Health Care Complaints Act). Further, if the information in question is in fact personal information, the statutory scheme under the Health Care Complaints Act may have some bearing on the balancing of public interest considerations for and against disclosure.
The form the complainant filled out was a "Notification (complaint)" form. The scheme for making notifications about practitioners is contained in the Health Practitioner Regulation National Law (NSW). A mandatory notification is taken to be a complaint for the purposes of the Health Care Complaints Act, by operation of s 143A of the Health Practitioner Regulation National Law (NSW).
In most cases, the statutory scheme in the Health Care Complaints Act, to which the applicant's submissions refer, requires the HCCC to "give written notice of the making of a complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made" after it has assessed the complaint (Health Care Complaints Act, s 16(1)). However, subject to s 16(5) of the Health Care Complaints Act, the HCCC is not required to give that notice if it appears to the HCCC, on reasonable grounds, that the giving of the notice will or is likely to prejudice the investigation of the complaint, place the health or safety of a client at risk, or place the complainant or another person at risk of intimidation or harassment (Health Care Complaints Act, s 16(4)). Section 16(5) provides that the HCCC must give the notice if it considers on reasonable grounds either that it is essential, having regard to the principles of natural justice, that the notice be given, or that the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.
It is not in dispute that, in the applicant's case, the Commission did not give the relevant notice. It is unclear on what basis it decided not to do so, but I accept the complainant's evidence that it notified the complainant that a decision not to provide the notice had been made under s 16(4) of the Health Care Complaints Act. There is nothing in the evidence before the Tribunal to suggest that the applicant challenged the decision not to provide the notice by way of judicial review or otherwise.
Section 16 of the Health Care Complaints Act does not evince an unqualified legislative intention to disclose a complainant's identity. Rather, there is a clear intention, reflected in the terms of the section itself, to give the HCCC discretion to determine not to provide a complainant's identity to the subject of the complaint if any of the circumstances in s 16(4) apply, at least where s 16(5) is not applicable. The applicant submits that s 16(5) was applicable in the circumstances of the case, for natural justice reasons. As already mentioned, s 16(5) relevantly provides that the HCCC must give the notice if it considers on reasonable grounds that it is essential, having regard to the principles of natural justice, that the notice be given. There is no evidence before the Tribunal of the HCCC's view on this issue or why it came to the conclusion that it was not necessary to give the notice. Further, although it is unnecessary to decide, it appears that the body responsible for providing natural justice was the Pharmacy Council (when it was dealing with the complaint) rather than the HCCC, which referred the complaint to the Pharmacy Council.
It is not for the Tribunal to determine whether the HCCC or the Pharmacy Council erred in failing to provide the applicant with the notice set out in s 16(1) of the Health Care Complaints Act. The HCCC is not a party to the proceedings. Section 16 does not appear, on its face, to apply to the Pharmacy Council. To conduct an inquiry into the issue of the HCCC's or the Pharmacy Council's alleged non-compliance with s 16 would be to conduct a "collateral review of the merits or validity of official action" in freedom of information proceedings, contrary to the Court of Appeal's comments in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24], in relation to the former Freedom of Information Act 1989 (NSW); see also Shvetsova v University of New England [2015] NSWCATAD 49 at [36] and Raven v The University of Sydney [2015] NSWCATAD 104 at [45].
The statutory scheme under the Health Care Complaints Act protects the identity of a complainant in some circumstances. Whilst the applicant denies that those circumstances subsisted in this case, it is sufficient to note that the HCCC is not always required to disclose a complainant's identity to the subject of the complaint and that it formed the view that it was not required to inform the applicant of the complainant's identity in this case.
I do not consider that the fact that the information was unsolicited is relevant. The applicant says that the HCCC's privacy management plan provides that personal information does not include unsolicited information under the Privacy and Personal Information Protection Act. The correct position is that s 4(5) of that Act provides that personal information is not collected if it is unsolicited. However, it is the definition of "personal information" in the GIPA Act which is relevant in this case. Neither the Pharmacy Council nor the complainant has relied upon cl 3(b) of the table to s 14 of the GIPA Act in these proceedings (which brings into play the information protection principles under the Privacy and Personal Information Protection Act). The fact that information is unsolicited does not preclude it from being "personal information" under the GIPA Act.
It remains to consider the applicant's alternative submission that denying the applicant access to the complaint and, in particular, information as to the identity of the complainant under s 14(2) of the GIPA Act, conflicts with s 16(1) of the Health Care Complaints Act and undermines the legislative purpose of that Act.
The GIPA Act contains its own criteria for providing access to information. To the extent that there is no overriding public interest against disclosure, a person is entitled to access government information. Where there is such a public interest against disclosure, a person is not entitled to access the information under the GIPA Act. The GIPA Act has nothing to say about a person's right to access information under the Health Care Complaints Act. As indicated above, the HCCC made a decision that the applicant was not entitled to certain information, pursuant to s 16(4) of that Act (to which s 16(1) is subject). The questions of whether that decision was lawful and valid are not before the Tribunal. A decision to refuse access to information under the GIPA Act does not mean that the GIPA Act is "overriding" the Health Care Complaints Act in any circumstances, let alone in circumstances where the decision to refuse access is consistent with a decision purportedly made under s 16(4) of that Act. It could be argued, conversely, that to provide access to information, where the HCCC has decided to deny such access, would undermine the legislative purpose of the Health Care Complaints Act. This was not argued and I do not have to decide this. However, I am not persuaded by the applicant's submission that there is a conflict between the two Acts, or between a decision made under the GIPA Act to refuse access to information and the Health Care Complaints Act, or that the legislative purpose of the Health Care Complaints Act would be undermined by the refusal of access under the GIPA Act.

Which information is the complainant's personal information?

The next question for the Tribunal to determine is which information is the complainant's personal information.
The complainant's name, address, contact details and signature comprise the complainant's personal information because they are information about the complainant from which the complainant's identity is apparent or can reasonably be ascertained. Thus, the complainant's personal information includes the responses to questions 3 to 5 and the response to the notifier's declaration in Section E (other than the date).
The complainant has provided material relevant to determining whether the remainder of the information is the complainant's personal information. The complainant filed and served material on 5 July 2016 and 8 August 2016, each in the form of a letter signed by the complainant. The complainant's letters contain both factual material and submissions. Whilst the factual material is not presented in the form of a statement or affidavit, in my view it is "factual material" to which the Tribunal is required to have regard, insofar as it is relevant, under s 63(1) of the Administrative Decisions Review Act.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
For these reasons, I find that information in the responses to the second part of question 2, to questions 3 to 5 (including the first nine words of the marginal comment), 16 and 23, the first sentence in response to question 21, the handwritten information in Section E other than the date and the fifth to ninth words and signature in the comment beginning "Please note" on the final page, comprise the complainant's personal information. All of this is information "about" the complainant and the complainant's identity is apparent or can reasonably be ascertained from the information.
The complainant also submitted that the complainant's handwriting is the complainant's personal information. The handwriting is "information" because it can communicate knowledge including about the likely identity of the author (see Macquarie Dictionary definition of information: "knowledge communicated or received concerning some fact or circumstance.")
[NOT FOR PUBLICATION]
Accordingly, I find that the complainant's handwriting is the complainant's personal information.

Whether disclosure would reveal personal information

The next issue is whether disclosure of the complainant's personal information could reasonably be expected to "reveal" personal information.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
For these reasons, I find that disclosure of the complainant's personal information, as identified in paragraphs 84 and 87 above, could reasonably be expected to reveal personal information and that the public interest consideration in cl 3(a) of the table to s 14 of the GIPA Act therefore applies to it.

Information of which there are no public interest considerations against disclosure

Neither the complainant nor the Pharmacy Council have established that there is any public interest consideration against disclosure of the information sought which is not personal information, and the applicant is therefore entitled to be provided with access to this information.
It is doubtful whether the consideration in cl 3(a) of the table to s 14 applies to information which is only the applicant's personal information (that is, information which is not also the complainant's personal information). The Information Commissioner's Guideline 4 provides that: "this consideration against disclosure of personal information should be interpreted as referring to third party information: that is, personal information about someone other than the person requesting the information. Any other interpretation would be inconsistent with the public interest consideration in favour of providing people with access to their own personal information under section 12."
It may be that the construction adopted by the Information Commissioner is correct, although it is unnecessary to decide. This is because I consider that, even if cl 3(a) applies to the applicant's personal information, the public interest considerations in favour of disclosure of information which is the applicant's personal information only, outweigh those against disclosure. There is, in my view, a strong public interest in ensuring that persons the subject of professional complaints are provided with information about that complaint. Where the information is solely the applicant's personal information, the public interest in cl 3(a) either does not apply at all or, if it does apply, the weight to be given to it is very low.
Accordingly, the applicant is entitled to all of the information which is her personal information only. This leaves only the complainant's personal information, as identified in paragraphs 84 and 87 above, in contention.

Balancing considerations for and against disclosure of information

The next question to determine is whether the public interest considerations against disclosure of the complainant's personal information, on balance, outweigh the public interest considerations in favour of disclosure (GIPA Act, s 13).
The circumstance that some of the information is the applicant's personal information is a strong consideration in favour of disclosure of that information. The information which is both the complainant's personal information and the applicant's personal information is the information in: 1. the response to the second part of question 2; 2. the responses to all of questions 16 and 23; 3. the first nine words of the marginal comment on page 2 of the form; 4. the first sentence in response to question 21; 5. the response to question 23; and 6. the fifth to ninth words in the comment beginning "Please note" on the final page.
As Guideline 4 provides at paragraph 2.6, and as the Information Commissioner submits, the public interest in providing people with access to their own information is very strong. The applicant's personal information is part of a complaint about the applicant in her professional capacity. The applicant's profession as a pharmacist, and the circumstance that the Pharmacy Council is responsible for disciplining pharmacists, are personal factors of the application which favour disclosure of the information. These factors are particularly strong where the information in question is about the applicant's conduct as a pharmacist.
The public interest in providing individuals with procedural fairness in relation to complaints made against them is also strong. The rules of procedural fairness require that a person be given access to the substance of a complaint made against the person, where disciplinary action could follow if the complaint were to be substantiated. The substance of the complaint concerns the applicant's obtaining of the required CPD points. This is expressed in words which do not contain the complainant's personal information in responses to questions 18 and 21. There are some other comments which could possibly be considered to go to the substance of the complaint in the response to question 21. However, I do not consider that the first sentence in response to question 21 contains the substance of the complaint. The only information which is both the complainant's personal information and information about the substance of the complaint is in the response to question 23.
The public interest in not revealing an individual's personal information is also very strong. It may be diminished, however, in circumstances where an individual provides his or her personal information to a government agency when making a complaint, in the knowledge that it will be provided to the subject of the complaint.
The applicant submits, through her solicitor, that the complainant always knew that the complainant's name would be made available to the applicant. The complainant denies this. The complainant says that the complainant made a request at the time the complaint was lodged that the complainant not be identified. I find that this is the case. The complainant also says that s 16(4) of the Health Care Complaints Act always provided the possibility of anonymity being granted.
I am not satisfied that the complainant "knew" that the complainant's identity would be revealed to the applicant. If the complainant was aware of the statutory scheme, as the complainant indicates, the complainant would have known that there was a possibility that that would not occur. I accept that the complainant requested the HCCC not to provide the complainant's identity to the applicant. The complainant would not have made this request if the complainant "knew" that the HCCC was required to reveal the complainant's identity or that it always did so as a matter of course.
The guides to making complaints produced by AHPRA and the Pharmacy Council, upon which the applicant relies, are not relevant as there is no evidence that the complainant was aware of either of them.
The complaint or notification form has a greater relevance. The declaration on the form, which the complainant signed, states, "I am aware that AHPRA may send this form and attachments to the health practitioner/student concerned." The declaration does not indicate that the disclosure of the complainant's identity was inevitable or even likely, as the applicant's solicitor submitted; it only establishes that the complainant was, or should have been, aware that disclosure was possible.
The complainant's request not to be identified when the complainant made the notification indicates that the complainant wished to protect the complainant's identity from the outset and took steps to achieve this. The HCCC determined not to provide the complainant's identity to the applicant, purportedly pursuant to s 16(4) of the Health Care Complaints Act. In these circumstances, I do not consider that the complainant's knowledge of the possibility that the complainant's personal information would be provided to the applicant at the time of making the complaint diminishes the weight to be given to the public interest consideration against disclosure in cl 3(a).
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The considerations for and against disclosure of the complainant's personal information are, in my view, more finely balanced than would ordinarily be the case where an individual makes an official complaint. Often, in situations where an applicant seeks to find out the identity of a complainant under the GIPA Act, there are more applicable public interest considerations against disclosure, such as that disclosure would prejudice the supply of confidential information (see, for example, New South Wales Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 at [6]). In this case, however, the only public interest consideration against disclosure is that it is the complainant's personal information.
Notwithstanding this, I consider that, on balance, the weight to be given to the public interest considerations in favour of disclosure of the complainant's personal information is not as great as that to be given to those against disclosure. The applicant's identity as a pharmacist, subject to discipline by the Pharmacy Council, favours disclosure. However, this carries less weight in relation to information about the complainant than in relation to information about the substance of the complaint. This is because the identity of the complainant is of little relevance when the Pharmacy Council is determining whether a complaint has been substantiated. The fact that the complaint was not substantiated means that the applicant does not need to challenge the complainant's credibility in order to defend any charge against her. Whilst the Pharmacy Council may refer to the complaint at a later point in time, as the applicant has suggested, the complainant's identity is unlikely to be relevant to any future disciplinary proceedings.
I find that there is an overriding public interest against disclosure of the information identified in paragraphs 84 and 87 above. This is information which would identify the complainant and there is a strong public interest in not disclosing it. Although some of the personal information is also that of the applicant, it is not sensitive information about the applicant. Further, with the exception of the response to question 23, none of it contains the substance of the complaint, so the public interest in disclosing material when required to do so by the rules of procedural fairness does not apply.
The response to question 23 contains both the complainant's personal information and the substance of the complaint, as set out above. However, as the information about the substance of the complaint is included elsewhere in the form (where it is not combined with the complainant's personal information), access to the information constituting the substance of the complaint can be provided without revealing the complainant's personal information in question 23. Accordingly, the correct and preferable decision is to refuse access to the response to question 23.

Provision of access to information in a particular way

As noted above, the Pharmacy Council decided to provide access to some of the information sought by redacting the handwritten words on the complaint form and replacing them with a typed version of the same words.
I have found that there is an overriding public interest against disclosure of the complainant's personal information as constituted by the complainant's handwriting. The provision of access to the information in the handwritten words (as opposed to the information in the handwriting itself) may be achieved through the operation of s 72(1) of the GIPA Act: see Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 at [60]-[64].
Pursuant to s 72(1) of the GIPA Act, access may be provided to government information in one of the following ways: 1. by providing a reasonable opportunity to inspect a record containing the information; 2. by providing a copy of a record containing the information; 3. by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned); or 4. by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
Section 75 of the GIPA Act is also relevant. Section 75(1) provides: "An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information."
As the Information Commissioner submitted, "the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not … with respect to documents" (Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40]). This means that it is possible to refuse access to the information contained in the complainant's handwriting whilst providing access to the information contained in the words the complainant used.
The Information Commissioner made submissions appearing to suggest that s 72(1)(d) may apply in the circumstances. However, this only applies "in the case of information recorded in an audio record or recorded in shorthand or other encoded format." I do not consider that the applicant's handwriting is "encoded format" and find that s 72(1)(d) is inapplicable.
What the Pharmacy Council has done, in its internal review determination, is properly characterised as a decision to provide the applicant with a copy of a record containing the information to which access is granted, pursuant to s 72(1)(b). A "record" is "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means" (GIPA Act, Sch 4, cl 10). The record created by the Pharmacy Council comprises the redacted complaint form with typed information replacing the handwritten information to which the applicant has been granted access. Notwithstanding that this record was created for the purposes of responding to the applicant's GIPA application, it is a "record" because it is a "source of information". The creation of a new record is authorised by s 75.
In my view, ss 72(1)(b) and 75 together authorise the Pharmacy Council to provide access to the information contained in the words used on the form in a new record "containing the information", as it has done. The decision to provide access in this way is the correct and preferable decision (see Administrative Decisions Review Act, s 63(1)), as it is consistent with the decision that there is an overriding public interest against disclosure of the complainant's handwriting.

Orders

Pursuant to s 63(3) of the Administrative Decisions Review Act, the Tribunal makes the following orders: 1. The first respondent's decision to provide access to information in the Notification (complaint) form by creating a new record in which the handwritten text is redacted and, where access has been granted to the information, replaced with typed text containing that information, is affirmed. 2. The first respondent's decisions to refuse to provide access to information, and to provide access to information, are set aside and the following decisions are made in substitution: 1. The provision of access to the following information is refused: the information in the responses to the second part of question 2, to questions 3 to 5 (including the first nine words of the marginal comment) and to questions 16 and 23; information in the first sentence in response to question 21; the handwritten information in Section E other than the date; the fifth to ninth words and signature in the comment beginning "Please note" on a separate page; and the information constituted by the complainant's handwriting. 2. Access is to be provided to the remainder of the information sought by the applicant. 1. The first respondent is to provide the applicant with access to information in accordance with Orders 1 and 2, on 17 February 2017. 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: 19 January 2017

Freedom of Information Act 1989(NSW)

Marden v Pharmacy Council of New South Wales [2015] NSWCATAD 230 Marden v Pharmacy Council of NSW [2016] NSWCATAD 86 Nasr v New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 New South Wales Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 Raven v The University of Sydney [2015] NSWCATAD 104 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Shvetsova v University of New England [2015] NSWCATAD 49 Category: Principal judgment Parties: Judith Marden (Applicant) Pharmacy Council of NSW (First Respondent) Complainant (Second Respondent) Information Commissioner (Exercising right to appear and be heard) Representation: Solicitors: K Mills (Applicant) Pharmacy Council of NSW (First Respondent) Complainant in person (Second Respondent) Office of the Information Commissioner (Information Commissioner) File Number(s): 1410583 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), the disclosure of the Second Respondent's name is prohibited and the publication of the redacted paragraphs in the published version of this decision is prohibited.

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