Victorian Civil and Administrative Tribunal|2004-06-02|Before: Rizkalla DP

McNamara v Department of Human Services [2004] VCAT 1085 (2 June 2004)

[Note: These written reasons consist of an edited transcription of reasons given orally on 2 April 2004]

2 The carer's roster was released to Mrs McNamara in part, after the carers' surnames were removed from the roster. On internal review, the decision to release the roster with the surnames deleted was affirmed. Mrs McNamara has applied to this Tribunal for review of that decision.

3 The Department filed and served its s 49 material. On 9 February 2004, the Tribunal received a letter from Ms McNamara, apparently in anticipation of the Directions Hearing listed for 13 February 2004. The letter appears generally to be a response to the s 49 statement.

4 The Department claims that the information is exempt from release, relying on s 33 of the FOI Act. Section 33 concerns documents affecting personal privacy. Section 33(1) states :

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

"information relating to the personal affairs of any person" includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

6 Mrs McNamara simply asserted without providing any legal argument to support her assertion that a surname is not information relating to the personal affairs of any person.

7 I am satisfied however, that according to s 33(9) provision of a surname is information which would identify any person and is information relating to the personal affairs of any person.

8 The Department contends that the release to Mrs McNamara of a copy of the staff roster for the Glengala CRU with the full names of the Direct Care Workers at t he CRU (the carers) would be an unreasonable disclosure of information relating to the personal affairs of the staff.

9 I agree with the respondent's submissions that under s 33(1) of the Act, the test of unreasonableness involves a consideration of all the circumstances relevant to the particular case, as well as the balancing of two competing interests: the right of personal privacy of an individual and the basic purpose of the Act, which is to extend as far as possible the right of the community to access information in the possession of the government. (Re Page and MTA (1988) 2 VAR 243, at 245-246; Re Penhalluriack v DLI (unreported County Court 19/12/1983); Re Targridge Pty Ltd and RTA (1988) 2 VAR 604; Re Amusement Machine Operators Association Ltd and DSR (1988) 2 VAR 584; Re Ing and Legal Aid Commission (unrep AAT of Vic, Rizkalla DP, 25 September 1992); Re Simons and Vic Egg Marketing Board (No 1) (1985) 1 VAR 54 at 55; Re Borthwick and Health Commission of Vic (1985) 1 VAR 25 at 30).

10 In deciding under s 33 whether disclosure is unreasonable, I must, among other things, consider the interest of the applicant and purpose for which the applicant requires release (Re Penhalluriack; Re Page; Re Lapidos and Office of Corrections ( No 3) (1990) 4 VAR 156; Re Knight and CORE (No 1) [2002] VCAT 1769; Re AMR and Victoria Police (unrep AAT of Vic, Levine PM, 17 August 1994).

11 The Department contends that the surnames of the carers are not sought by the applicant in a genuine attempt to promote the public interest. The staff roster for the Glengala CRU has already been released to the applicant with the first names of the carers included. As such, it enables the applicant to know at any particular time (by first name only) which carer is working and how many carers are working. Because of this, the disclosure to the applicant of the surnames of the carers would not provide her with any additional benefit.

12 In addition to this, the Department contends that due to the history of strong antipathy exhibited by the applicant toward the respondent and the carers, it is reasonably likely that the applicant would primarily use the information to target individual carers in a manner that is likely to harass and unduly hinder them in the performance of their duties. As such, the respondent contends that the carers would be subject to an unreasonable invasion of their privacy. The Department submitted that the purpose of s 33(1) of the Act is to prevent the persons to whom the information relates from being subject to unreasonable invasions of their privacy and referred to Re Page. The Department also referred to cases where it had been held that the motives of the applicant are relevant to a determination of whether disclosure is unreasonable. Release is more likely to be unreasonable if :

* the Applicant seeks access for the purpose of some particular personal crusade or for the purpose of embarrassing or otherwise harming the persons to whom the information relates (Re Knight; Re Pinder and Medical Practitioners Board (1996) 10 VAR 75; Re Gunawan and DED, (unrep VCAT, Davis SM, 15 December 1998); Re Akers and Victoria Police (No 2) [2003] VCAT 398;

* the applicant has no commendable motive and intends to use the information for a mischievous purpose (Re Knight);

* the applicant seeks the information out of sheer bloody-mindedness (Re Pinder);

* there is an unacceptable risk the applicant would inappropriately pursue the person to whom the information relates and occasion them stress (Re White and Pyrenees Shire Council [2001] VCAT 2043;

* the applicant has a capacity to harass and vilify persons, and may use the information to harass or vilify the person or persons to whom the information relates (Re O'Sullivan and DEET (unrep., VCAT, Megay SM, 1 November 2002); and

* where the information sought is a person's name - there is no demonstrable need or purpose for the applicant to know that name (Re White).

13 The Department submitted that release will also be unreasonable if it is unlikely that the persons to whom the information relates would want the information released or in fact do not want it released, or if those persons would be caused stress or anxiety (Re Knight; Re Page; Re White; Re Reilly and Kilmore and District Hospital (1993) 6 VAR 16; Re Mamo and Crimes Compensation Tribunal (1996) 10 VAR 264). In this particular case, the Department submitted that any public interest in obtaining access to the surnames of the carers is outweighed by the public interest in protecting the carers against unwarranted invasions of their privacy. This is because releasing the surnames of the carers to the applicant in this case would be likely to affect the well-being of the carers by needlessly occasioning them stress and anxiety. The Department called witnesses who gave evidence that the carers have informed the respondent that they wish to have their privacy maintained and do not want the information to be disclosed to the applicant.

14 In broader terms, the respondent contended that :

* Direct Care Workers throughout the direct care industry in Victoria would experience considerable disquiet if it were thought that their full names, along with the exact location of their employment and their precise working hours, might be released to the public;

* this in turn would negatively affect the standards of service provided across the State in the CRU sector, as well as poor staff retention rates among Direct Care Workers; and

* poor retention rates among Direct Care Workers would directly affect the continuity of care provided to their clients.

15 Further the Department referred to s 33(2A) of the Act which states :

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

16 The Department submitted that under s 33(2A) of the Act, it is also relevant to the question of whether disclosure is unreasonable to consider whether disclosure would, or would be reasonably likely to, endanger the life or physical safety of any person. In this case, the respondent contended that it is highly likely that the applicant would provide the information to a certain third party (the Third Party) who is a close associate of the applicant and, like the applicant, has a son who resides in a CRU, and whom I note was a witness for the applicant, a Mr Tony Tregale. Mr Tregale is known to the respondent and the Department contends he has a history of intimidation, harassment and stalking of, and violence towards, Direct Care Workers. The Department referred to, for example, a current intervention order against Mr Tregale which refers specifically to Glengala and which was obtained when he apparently assaulted an employee of the respondent. The relevance of these matters being that release under the Act is regarded as release to the public at large : Re Traynor and MMBW (No 2) (1988) 2 VAR 358 at 365.

17 The Department called Paula, who was acting house supervisor, and who now is a disabilities aid development support officer and Paul O'Kelly, sector manager, to give evidence. Both had provided witness statements, adopted those and were cross-examined. Further, the Tribunal received a letter from the staff at Glengala, including Paula.

18 Mr O'Kelly gave evidence and was cross-examined. I accept that he knows the applicant well in that he has a meeting with her every two months. I accept his evidence that this is an unusual arrangement and that he suggested the regular meetings with Mrs McNamara to try and deal with the many issues and complaints she raises, and to try to take some pressure from the staff at Glengala.

19 He gave evidence that the roster has been released to the applicant except for the surnames of the workers and that he does not prepare the roster, he approves it as part of his duties, together with any staff re-arrangements or changes.

20 He stated that when Mrs McNamara made a request for the roster, he convened a meeting with the staff of Glengala to discuss the request. He stated that all of the staff expressed their concerns and said they were most unhappy about releasing their names (first and surnames) to Mrs McNamara and generally. After discussion with the FOI officer, he advised the staff, that it was considered necessary to release their first names. The staff expressed their concern at Mrs McNamara and other people being able to identify where they are or where they should be.

21 He stated that in the meeting, the staff expressed their feeling of being under a lot of pressure from Mrs McNamara about the care of her son. Mrs McNamara had already made many specific requests in relation to her son's care, which included the type of apples, All Bran he consumes and the types of shoes he must wear. Mr McNamara had made comments about when the bus was at or not at Glengala and whether the residents should be transported by the bus at particular times. He said that Mrs McNamara has also advised him that individual staff members should be sacked, and that he believed she has informed her son about this who has repeated this to staff members.

22 He stated that he had a second meeting with the staff at Glengala when an FOI officer of the respondent was present to explain the FOI process. The staff were very emotional about their surnames being released to Mrs McNamara and could not see where the process would end.

23 He stated the staff also had concerns with who would have access to the information requested, because there is a current intervention order against Mr Tony Tregale in relation to him attending the respondent's premises, including Glengala and the regional offices in Preston. He stated Mr Tregale has assisted Mrs McNamara in the past when meeting with the respondent's officers to discuss her son's Individual Program Plans (IPP) and appeared with her at the directions hearing of this application on 13 February 2004.

24 He stated that prior to the intervention order being granted to the respondent against Mr Tregale, he would regularly put issues regarding care at Glengala to him and to the staff, even though Mr Tregale's child is not a resident at Glengala. Although Mr Tregale no longer attends the respondent's premises, his previous attendances still concern the staff, and they are most reluctant to reveal their personal information to him or the applicant.

25 He stated that the staff at Glengala have expressed to him their strong objections to their surnames on the roster being released to the applicant and anyone else, together with their concern as to intended use of the information.

26 Mrs McNamara's response to Mr O'Kelly's statement was filed and is Exhibit D. She asserts his statements support her findings that staff want to be more invisible than they already are and her findings that direct care staff lore is in conflict with the Department care policies and standards and refuse to accept that government material and actions are subject to freedom of information.

27 There was nothing put to Mr O'Kelly in cross-examination that actually challenged his evidence and I accept it.

28 Paula gave evidence about her concerns about release of her and the other staff's surnames and has discussed the request with all the staff who have similar concerns to what she has. She is concerned about why Mrs McNamara wants the information and what she will do with it. Her evidence to the Tribunal elaborated on her statement. She stated that :

* The applicant's son is capable of making many of his own decisions. He does have a limited guardian and an administrator, who are not the applicant.

* The applicant has expressed a lot of negative opinions about the service provided to her son and often appears to have unrealistic expectations about what can be provided when there are other residents and the working hours of the staff also have to be considered.

* Mrs McNamara will comment on the presence or absence of the bus and is concerned she may comment on whether staff should be at work, even though rosters may have been changed with the consent of the Sector Manager. Paula has a general concern as to her own privacy and whether it is being abused or will be abused by Mrs McNamara.

29 Mrs McNamara regularly complains to managers, local members of parliament and the Minister responsible for the respondent about her concerns about her son's care. Paula acknowledges her right to do so, but finds her intimidating and confronting and her behaviour does add to Paula's level of stress. It means some days she is reluctant to go to work, which is why she does not wish Mrs McNamara to have her surname or those of other staff on the roster.

30 In her oral evidence, Paula explained that as a staffer she worried about how the information would be used and to whom it would be given. She was concerned about the negativity towards staff by Mrs McNamara and her intimidating and confronting manner and her constant questioning of the care of her son who, she said, was quite capable of expressing his own wishes himself and who has different expectations from his mother.

31 She confirmed in the hearing the concerns of the other staff, particularly because of what the roster showed about when staff would or would not be on duty. She is a signatory to the letter forwarded (Exhibit 3). The signatories to the letter stated :that they did not wish to appear as witnesses but set out their concerns and reasons for not wanting their details released to the applicant. They were :

* Constant complaints to both staff and management in relation to staff work performance regarding duty of care issues.

* Mrs McNamara consistently misconstruing information and conversations had with her and using them against staff in an attempt to get staff into trouble. Therefore if Mrs McNamara visited the CRU staff do not want to be left alone with her as they feel they need a witness to any actions or conversation had with her, her son, and the other residents.

* Mrs McNamara has unrealistic expectations of staff eg matters in relation to her son need to be attended to immediately despite the fact he shares a home with 5 other people whose needs are equally as important as her son's.

* Staff are often held accountable for decisions that are actually made by her son, a young man who can advocate for himself in all areas of his life, and this regularly creates conflict between Mrs McNamara and staff.

* Constant complaints to management about Mrs McNamara's son's healthcare at the CRU despite the fact that he has a legally appointed Health Guardian who is extremely satisfied with the level of healthcare he is currently receiving.

* The staff say that due to the abovementioned matters, Mrs McNamara's low opinion of staff and the constant attempts to try and bring the staff into disrepute, the staff, have great concerns about releasing their surnames to the applicant via the roster. They are concerned at how the information will be used and for their safety. Some staff live alone and feel vulnerable. The roster shows when they are at work and when they are at home. They are also concerned that Mrs McNamara may complain if they are not at work when they are rostered on, even though there may be legitimate reasons for their non-attendance that have management approval.

* Staff feel that the quality of care is not related to the need for surnames to be released to the applicant or anyone associated with the applicant.

32 Mrs McNamara filed responses to the Department's statement of legal contentions and public interest statements from Anthony Tregale and Heather Tregale, together with response to the statements of Paula and Mr O'Kelly.

33 She adopted as her statement the first document referred to above (Exhibit A). Mrs McNamara draws attention to herself as a caring parent seeking only transparent and accountable service and contrasting the position with what she calls The awesome power being generated by the Department. In response to what she refers to as the Department's use of s 33, she maintains and asks the Tribunal to so consider that the duty of care responsibility of the department towards those in its care, that they (and their representatives) should know the full names of those providing the care. She does not accept that the release of material containing full names of the department's direct care workers to residents and their representatives would be an unreasonable disclosure of information relating to the personal affairs of those staff.

34 Mrs McNamara believes the test of unreasonableness in this case involves consideration that there are significant interests in, that the said staff working in the residents' home are providing very personal care, and that these staff have access to the most intimate details of the residents and significant details of their families. She believes therefore that the Tribunal must consider the equal opportunity aspect of any party having extensive access to such a wealth of personal detail of the other, yet unwilling to provide their legal name.

35 She finds it difficult to understand the respondent questioning her bona fides in requesting full disclosure, when the section 8 of the department's publication A Quality Framework for Disability Services encourages consumers and their representatives to scrutinise the activities of service providers, with consumer protection being provided through public accountability for self-assessment. She considers that these accountability parameters would be compromised if the key factors (the Direct Care Staff) in the service provision are permitted to withhold their full names from the consumer and their representative.

36 She suggests that the Tribunal should disregard the respondent's attempts to discredit the applicant and her associates, because all they have ever done is attempt to secure service level and quality from the department in accordance with departmental care publications and standards, and to seek service accountability.

37 She contends that it is vital for services provided to those with limited ability to question service level and quality be as transparent as possible. And that the respondent's claims that residents and their representatives in knowing who is on duty and when in the residents' home would cause the department's direct care staff stress and anxiety, the respondent has clearly failed to recognise and accept the level of stress and anxiety felt by families of those who cannot speak effectively for themselves in a living situation which has little accountability behind closed doors in isolated community settings and where there is real potential for intimidation and retribution of those with limited ability - the residents.

38 She also requests the Tribunal to consider the inconsistency in the respondent's case of allowing Direct Care Staff to withhold their full names, in comparison with House Supervisors who are also required to provide a percentage of direct care work at the service point. And the full names of all the House Supervisors and Managers in the Region are published and distributed to parents and family members attending regular Carer Meetings in Watsonia.

39 Mrs McNamara requests the Tribunal consider the respondent's claim that she would gain little from having more than first names on a copy of the staff roster for the purpose of determining which staff member is on duty at a particular time when the applicant might wish to discuss a particular aspect of care for her son. She says that view fails to consider that there may be two staff with the same first name, or casual or extra hours, or contract staff with the same first name.

40 In conclusion she contends that the department's own publications strongly promote that the activities of service providers must be open to scrutiny by key stakeholders, particularly consumers and their representatives. With the majority of supported accommodation group homes, where the department is the service provider, being isolated in the community with little supervision of staff providing services to those unable to speak effectively for themselves, it is essential that services be as transparent as possible to consumers and their representatives.

41 Mr Anthony Tregale gave evidence, adopted his statement and was cross-examined. His statement (Exhibit B) addressed the department's first name only policy for direct care staff. Mrs Heather Tregale gave evidence, adopted her statement and was cross-examined. Her statement (Exhibit C) addressed her perceptions of the tone of meetings she attended with Ms McNamara and her views of what staff priorities might be.

42 In cross-examination of Mrs McNamara and the Tregales, it became clear that they have worked closely with Mrs McNamara and have every intention of continuing to do so and that the Tregales see themselves as adopting the role of empowering parents of disabled children who are afraid to speak out if they have concerns and how their children are cared for.

43 I accept the evidence of Paula and Mr O'Kelly that the direct care staff all have concerns about release of their surnames and their reasons for concern which would involve the release of their names not just to Mrs McNamara, but to the public and the world at large, a matter Mrs McNamara had not appreciated until this hearing.

44 I accept their evidence of their own personal concerns and the concerns of all the staff about what might be done with the information, particularly given the difficult history coupled with Mrs McNamara's connection with one of her witnesses, Mr Tregale, who is the subject of a current intervention order relating to a staff member, a matter not challenged.

45 Mrs McNamara's case as I understand it, is essentially based on her understanding of accountability, transparency and openness. She argues that because the full names of House Supervisors and Managers are known, there is no reason why one should not know the surname of the direct carers particularly as they know all the intimate details of the residents. It is difficult to see that release of these surnames would promote further any of these matters. Should Mrs McNamara wish to raise something with a supervisor, the provision of a given name would be sufficient to identify that person to the supervisor. Nor do I accept that it would be sufficient reason for release so that she could, for example as she says, sue a staff member for theft when such an allegation could properly be referred to others.

46 Weighing the interests she has expressed with the interests and concerns of the others, I am satisfied that the balance clearly falls in favour of the non-disclosure of the direct care staff surnames and disclosure would be unreasonable. I find that the information is exempt from release on s 33 of the Act. I therefore affirm the decision of the respondent. For completeness, I agree with Ms Coombs that s 50(4) has no application where an exemption is made out under s 33.

McNamara v Department of Human Services [2004] VCAT 1085

At a glance

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Before

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Judgment (72 paragraphs)

McNamara v Department of Human Services [2004] VCAT 1085 (2 June 2004)

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