Rourke v Health Professional Councils Authority

Applicant's right to information

1. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
2. A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
3. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1). It may decide to provide access to information or refuse to provide access to information because there is an overriding public interest against disclosure of the information (s 58(1)(a) and (d)).
4. The power of the Civil and Administrative Tribunal ("Tribunal") to review a decision arises where a person is "aggrieved" by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("Administration Act") of that decision (s 100 of the GIPA Act).
5. What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act.
6. There is no dispute that the Respondent is an "agency" within the meaning of the GIPA Act.
7. An agency has, therefore, made a decision, the agency being the Respondent and the decision being that made on 18 August 2023. What is in dispute is the kind of decision that had been made for the purposes of s 80.
8. The Tribunal under s 63 of the Administration Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
9. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid "access application" seeking "government information". It is not in dispute that the Applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act). In these circumstances, that the Applicant had made a valid access application was not disputed.
10. The Respondent has the onus of establishing that the decision it has made is justified (s 105(1) of the GIPA Act).

Consideration

1. A number of matters arise for consideration. They are: 1. was a decision made by the Respondent within the scope of s 80 of the GIPA Act and if so, of what kind? 2. whether the Applicant is a person "aggrieved"? 3. whether proceedings should be dismissed?

Reviewable decision

1. Section 80 of the GIPA Act sets out what are reviewable decisions in the following terms: "80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object)".
2. The Applicant complains that the Respondent unilaterally amended the Applicant's access application. They did so, in the Applicant's submission, by reading the reference to the "hearing rule" as a reference to "fairness/procedural fairness" and did not advise the Applicant that they had done so.
3. The Applicant submits that the effect of what the Respondent did was to refuse to deal with an access application within the meaning of s 80(c) and/or alternatively, to provide access to information in a particular way in response to an access application (s 80(i)). On this basis, the Applicant claims to be "aggrieved" within the meaning of s 100(1) of the GIPA Act and therefore, able to seek review by the Tribunal.
4. The Respondent submits that there has been no refusal to deal with the Applicant's access application. The Respondent, in their submission, has searched for the information sought and, in their submission, produced more than what was sought.
5. The Respondent submits that it has not provided information "in a particular way" within the meaning of s 80(i). Section 80(i), in the Respondent's submission, refers to a decision by an agency pursuant to s 72(2) of the GIPA Act to provide information requested in a way other than in the way requested by the Applicant and that no such decision had been made.
6. The Respondent further submits that s 80 does not give the Tribunal power to review the manner in which the Respondent has construed the Applicant's access application and that if it has amended the Applicant's application, this is not a decision within s 80. The Respondent, however, accepts that the manner in which the Respondent has construed an access application may be relevant to a decision that information is not held by an agency within s 80(e).
7. Consideration of the matters in issue requires, first of all, examination of the specific scope of the Applicant's application and how the Respondent understood that scope. The Applicant relevantly sought documents dealing with the "hearing rule". The "hearing rule" is a well understood principle applicable to administrative decision makers, requiring them to inform a person of the case against her or him and provide that person with an opportunity to respond in a way that is appropriate in the circumstances, before the decision is made.
8. The Respondent's evidence was that they found no document specifically dealing with subject matter described as the "hearing rule". However, the Respondent searched for material dealing with "procedural fairness" and produced two documents following that search.
9. I accept the Respondent's submission that the notion of "procedural fairness" encompasses and is broader than what is understood to be the "hearing rule". It may, for example, also include what is known as the rule against bias.
10. It must follow that the searches made by the Respondent, looking for information concerning procedural fairness, addressed not just the specific subject matter of the application in this matter, namely the "hearing rule", but went further.
11. To the extent that the Respondent found nothing dealing with hearing rule specifically, the Applicant, in my opinion, has made a decision that the relevant information was not held by the agency within section 80(e). In his oral submissions, the Applicant indicated that he accepted that information concerning the hearing rule specifically had not been found.
12. Even if what was provided was not precisely what was sought, namely information concerning specifically the hearing rule, the search dealing as it did with material concerning "procedural fairness", can reasonably be said to have produced information "in response to" the Applicant's access application under section 80(d).
13. The "Health Professional Councils Code of Conduct for members" was one of the two documents produced to the Applicant. It specifically expects members to make "decisions that have regard for and uphold the principle that all persons have a right to natural justice and fairness". "Natural justice" is understood to include what is known as the "hearing rule".
14. I do not see in the circumstances at hand that there has been a decision to provide access to information in a particular way within the meaning of section 80(i) or a decision to refuse to deal with an application within the meaning of section 80(c). However, to the extent that a decision was made that there was no information held specifically concerning the hearing rule, or a decision made in response to the Applicant's application that resulted in the provision of the two documents to him, I find that a decision has been made within the meaning of s 80(e) or (d) for the reasons set out above.
15. To the extent that the information provided was available on a publicly accessible website, it may be argued that the information "is already available to the applicant" within the meaning of s 80(f). Whether this will always be the case is unclear, especially where the applicant does not have easy or ready access to the internet, or the required knowledge as to what resources are available on the internet. However, the written decision in this matter identified the publicly available document to be given to the Applicant and provided the URL for access. I find that a decision to provide access was made in the circumstances of the present case in relation to that document, within s 80(d).

Aggrievement

1. Section 100 gives the Civil and Administrative Tribunal jurisdiction to review reviewable decisions where a person is "aggrieved" by a reviewable decision of an agency. The Tribunal on review, is to determine what is the "correct and preferable decision" (s 63 of the Administration Act).
2. The Respondent's submission is that if it has given a construction to the Applicant's access application to widen its scope beyond what the Applicant sought, this is not a matter for review because there can be no aggrievement of an applicant who gets more than what they sought.
3. The Applicant, for his part, seeks a variation to the decision of the Respondent to say that: "There were no documents that specifically referenced the hearing rule".
4. The Respondent's decision under review says this, but also says: "I have identified and located the relevant documents which falls within the scope of your request".
5. The effect of what the Applicant wants is that the sentence set out at [37] above be deleted from the Respondent's decision.
6. In circumstances where the Respondent has made a decision to provide the two documents in question, having found that documents specifically addressing the subject matter of the access application could not be found, it is unclear to me what purpose could be served by making the variation sought by the Respondent. If the Applicant's objection to the Respondent's decision is that the Respondent mis-identified the scope of the Applicant's access application, and wishes to narrow its scope, it is unclear to me what purpose can be served by doing so at this stage of the matter.
7. In the circumstances, I see no purpose in making variation to the drafting of Respondent's decision sought by the Applicant.
8. If I were to construe the legislation strictly, it is difficult see what the basis of the claimed aggrievement of the Applicant is, in circumstances where the Respondent widened the scope of the Applicant's application to provide more information than was sought. However, in CBL v Sydney Water Corporation [2016] NSWCATAD 287, the Tribunal observed at [14] that the test as to whether a party "could be aggrieved" by the Tribunal's decision "is not an onerous one". If the Applicant believes that the Respondent misconstrued the scope of his application, I accept that there is some basis, in principle, for the proposition that the Applicant was aggrieved.

Dismissal

1. Section 55(1)(b) of the NCAT Act gives the Tribunal power to dismiss applications in certain circumstances, including if the Tribunal considers that the proceedings are "frivolous or vexations or otherwise misconceived or lacking in substance" (s 55(1)(b)). The Respondent seeks dismissal of the Applicant's application in this matter.
2. Although the Tribunal may have the power to dismiss proceedings under s 55 in circumstances where the relief sought by the Applicant may not achieve anything of substance, I will not do so. Having given consideration to the submissions of both parties and heard the evidence. I consider that the correct and preferable decision to be made by the Tribunal is to affirm the reviewable decision in this matter.

Orders 1. The administratively decision under review is affirmed. 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: 27 November 2024