Southern Radiology Nuclear Medicine v Environmental Protection Authority [2014] NSWCATAD 145 | Case summary

NCAT Administrative and Equal Opportunity|2014-09-17

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2The proceedings are brought pursuant to Part 5 Division 4 of the Government Information (Public Access) Act 2009 ("the GIPA Act") in relation to a decision made by Dr Racho Donef, the Senior Project Officer (GIPA/Privacy) of the Environment Protection Authority ("the EPA"). Dr Donef's decision was to release information that the Applicant contends concerns its business affairs. 3The GIPA access application requested access to: "Documents produced in the last year containing information about reports on: (a) Lost radiation sources and (b) Unauthorised radiation practices or processes". 4The Applicant is a third party who objected to the release of a number of documents ("the Documents") that were the subject of the determination. The Documents concern correspondence between the EPA and the Applicant in relation to an inspection of the Applicant's premises by the EPA. During the inspection the EPA's officers identified two issues of non-compliance with the requirements of the Radiation Control Act 1990. 5The Respondent advised the Applicant that it had received the access application and that it proposed to release the Documents. In response, the Applicant raised objections to the proposed release. Notwithstanding the Applicant's objection, Dr Donef's decision was to release the information. The Applicant has applied to the Tribunal for external review of the determination.

Background 6The Applicant is a medical imaging provider. Its services include diagnostic radiology, interventional radiology, cardiac computed tomography (CT), nuclear medicine and obstetric and gynaecological imaging. One of the Applicant's practices is located in the premises that the EPA's officers inspected. 7In NSW, a nuclear medicine practice must be licenced to undertake nuclear medicine examinations. Registration and licencing is governed in this state by the Radiation Control Act 1990 and the Radiation Control Regulations 2003. 8In August 2013 the Respondent advised the Applicant of the access application. The Access Applicant did not consent to the disclosure of its identity. The documents sought by the Access Applicant were documents evidencing reports on lost radiation sources and unauthorised radiation practices. The Respondent advised the Applicant that it was proposing to release the Documents to the Access Applicant. 9The Documents to which this matter relates are: (a)Letter from the Respondent to Dr Guy O'Connell dated 27 September 2012 (x2); (b)Letter from the Respondent to Mr Don Kelly dated 27 September 2012; (c)Letter from the Applicant to the Respondent dated 23 October 2012; (d)Letter from the Applicant to the Respondent dated 25 October 2012; and (e)Letter from the Respondent to Mr Don Kelly dated 11 December 2012. 10In response, the Applicant submitted that, among other matters, the Documents had the potential to prejudice its legitimate business, commercial, professional or financial interests. The Applicant also submitted that, if the Respondent determined to release the Documents, such a release not be included on the Respondent's disclosure log. The Applicant was concerned that if its competitors had access to that information through the disclosure log, it could be used to the Applicant's detriment. 11The Applicant submitted that if the Documents are released to the Access Applicant, the following would be reasonably likely to occur: (a)The information relating to the Applicant's previous non-compliance with the Act would be used to damage the reputation of the Applicant and its staff; (b)The information would also be used to convince others of the Applicant's failure to meet regulatory requirements; (c)As a result of the above, the Applicant's regular referrers would refer potential patients to other radiology practices for examination; and (d)the Applicant's clients and potential clients would consult the Applicant's local competitors rather than come to the Applicant's practice. 12The Applicant also submitted that the Documents contain information which does not fall within the scope of the Access Applicant's request and which is commercially sensitive. 13The Applicant has proposed as a compromise the disclosure of redacted copies of the Documents with information that identifies the Applicant and various related entities and individuals redacted.

Applicable legislation 14Section 3 of the GIPA Act provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 15Section 5 of the GIPA Act provides: 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 16Section 9(1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. 17Section 12 of the GIPA Act provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 18Section 13 of the GIPA Act provides: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act 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. 19Section 14 of the GIPA Act provides: 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. ... 20The Table to section 14 of the GIPA Act relevantly provides: Table ... 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). ... 21Section 15 of the GIPA Act provides: 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. 22Section 25 of the GIPA Act provides for a disclosure log. That section provides: 25 Requirement for disclosure log An agency must keep a record (called its "disclosure log" ) that records information about access applications made to the agency that the agency decides by deciding to provide access (to some or all of the information applied for) if the information is information that the agency considers may be of interest to other members of the public. 23Pursuant to section 54(1) of the GIPA Act, an agency must take reasonable steps to consult a person before providing access to information sought in an access application if it appears that: (a)the information is of a kind that requires consultation under that section; (b)the person may reasonably be expected to have concerns about the disclosure of the information, and (c)those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. 24Information is of a kind that requires consultation if it: (a)includes personal information about the person; (b)concerns the person's business, commercial, professional or financial interests; (c)concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person; (d)concerns the affairs of a government of the Commonwealth or another State (and the person is that government). 25Under section 56(1)(b) of the GIPA Act, the Applicant can object to the inclusion in the disclosure log; however, the grounds on which it is entitled to object are limited to those listed in section 56(2). Section 56 provides: 56 Authorised objector can object to inclusion in disclosure log (1) Each of the following persons (an authorised objector) can object to the inclusion in the agency's disclosure log of all or specified information concerning an access application: (a) the access applicant, (b) any other person with whom the agency has consulted (or is required to consult) under section 54 before providing access to the information sought in the application. (1A) An objection can include reasons for the objection and, in the case of an objection by an access applicant, can be made as part of the access application or separately. (2) The grounds on which an authorised objector is entitled to object to the inclusion of information in an agency's disclosure log are limited to any one or more of the following: (a) the information includes personal information about the authorised objector (or a deceased person for whom the authorised objector is the personal representative), (b) the information concerns the authorised objector's business, commercial, professional or financial interests, (c) the information concerns research that has been, is being, or is intended to be, carried out by or on behalf of the authorised objector, (d) the information concerns the affairs of a government of the Commonwealth or another State (and the authorised objector is that government). ... 26Where an agency receives an objection through the consultation process, it must take the objection into account in determining whether there is an overriding public interest against disclosure of government information. 27Section 105 of the GIPA Act provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. ...

The Applicant's case 28The Applicant asserts that the 'commercially sensitive' information relates to requests for advice concerning the specific business arrangements in place at its premises. It is concerned that if this information becomes publicly available, these business arrangements would likely be adopted by its competitors, thus eliminating any advantage. 29The Applicant is apprehensive that the Australasian Association of Nuclear Medicine Specialists ("AANMS") will publish the Documents as evidence of the alleged non-compliance with the standards it has set. 30The Applicant relies on the evidence of its Managing Partner Dr Peter Guy O'Connell, a Nuclear Medicine Physician. Dr O'Connell's evidence sets out the nature of the Applicant's business activities and he also outlines the circumstances in which the Documents were created. That is, their link to the EPA's inspection of the Applicant's premises in September 2012. 31The Documents refer to alleged legislative breaches by the Applicant that were identified during that inspection. The Applicant submits that one of the alleged failures was in fact not a breach. In regard to the other identified breaches, the Applicant submits that there was no risk to the public and the breaches have been rectified. 32In addition, the Applicant submits that the Documents also contain details of the Applicant's request of advice from the Respondent, and the advice that was provided. It argues that this is commercially sensitive information as it seeks and provides information about the specific business arrangements that the Applicant has in place. It says that it is not information that relates to lost radiation sources or unauthorised radiation practices. It is the Applicant's submission that information about the practice arrangements in terms of location and staffing are a matter which provides it with a competitive advantage in the market-place and if disclosed would undermine that advantage. 33The Applicant referred to views that I expressed in the case of Fulham v Director General, Department of Environment Conservation [2005] NSWADT 68. In that matter, the documents proposed to be released concerned:

an application by Dr Fulham for a licence;
documents relating to the workings of the Radiation Advisory Council, which included recommendations for licence approvals for Dr Fulham;
copies of licences issued to Dr Fulham;
an extract of an Agency procedural manual;
an application by Dr Fulham to vary his licence; and
an Agency pro forma letter issued to all radioactive substance licensees. 34I found that the documents were not prejudicial to Dr Fulham's business, commercial, professional and financial interests. I stated at paragraphs [37] - [38]: 37 In this mater the nature and contents of the relevant documents is uncontroversial. For the documents to be exempted there has to be a prejudice of such a degree that the documents could reasonably be expected to have an unreasonable adverse effect on Dr Fulham's affairs. The adverse effect to which Dr Fulham points is renewed efforts to discredit him or his right to hold a licence or to practice in PET; distraction from his work and intrusion into his personal life; and the use of the documents in a campaign in such a way as would undermine if not destroy his practice and business. 38 Dr Fulham has adduced evidence setting out what he perceives to be the consequences if disclosure takes place. However, he has only speculated that his affairs might be affected by the misuse of information regarding his licence. There is nothing in the documents themselves that could adversely affect those affairs. In my view, the risk to which Dr Fulham has referred exists regardless of whether or not the documents are released. The release of the information contained in the documents would not increase that risk. 35In the Applicant's submission, there is a significant difference in terms of potential adverse effect between documents of an administrative nature and correspondence evidencing breaches of the Radiation Control Act as is the case in this matter. 36The Applicant submits that documents concerning a medical practitioner's radiation licence (including approvals and variations of that licence) do not carry the same negative connotation as letters between an organisation and an Agency regarding noncompliance with regulatory requirements. The latter documents are 'controversial' in the sense that they have the potential to prejudice the Applicant's business, commercial, professional and financial interests (for the reasons outlined earlier), whereas the former documents are not. The Tribunal should therefore distinguish this case from the decision in Fulham. 37The Applicant submits that the release of the Documents could reasonably be expected to cause damage to the reputation of the Applicant and Dr O'Connell. 38The Applicant acknowledges that there is a general public interest in providing individuals with access to government information in order to give effect to and promote open discussion about public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance; and to inform the public about the operations of agencies. However, it contends that in this case disclosure of the Documents could reasonably be expected to prejudice the Applicant's legitimate business, commercial, professional and financial interests. It submits that the public interest considerations in favour of disclosure do not outweigh those against disclosure as is required by section 13 of the GIPA Act. 39The Applicant further submitted that the Documents should not be disclosed on the disclosure log that is accessible by the public. It submits that even if the Tribunal determines that the Documents are to be disclosed to the Access Applicant in whole or in part, releasing them to others only further exacerbates the commercial detriment. This is because the information will be available to a large number of its competitors. 40The Applicant says that the damage that it expects to suffer as a result of the disclosure of the Documents is 'more than a mere possibility, risk or a chance' and is based on 'real and substantial grounds': see Leech v Sydney Water Corporation [2010] NSWADT 298, at paragraph [25. The Applicant says that this damage is a clear public interest consideration against the disclosure of the Documents. 41The Applicant contends that the public interest will be satisfied by producing the documents in redacted form. It submits that in redacted form the Documents demonstrate: (a)the Respondent inspects nuclear medicine premises to ensure compliance with the Act and the Regulation; (b)the effectiveness of the Respondent in maintaining such compliance; (c)potential unauthorised nuclear medicine practices and processes that may be engaged in; and (d)the requirements that must be met by nuclear medicine practices pursuant to the Act and Regulation. 42It is the Applicant's submission that: (a)the Documents in their entirety should not be provided to the Access Applicant; (b)in the alternative, the Documents should only be released to the Access Applicant in a redacted form; and (c)no information should be published in the disclosure log.

The Respondent's case 43The Respondent submits that the Applicant has not provided enough evidence to establish that the public interest considerations against disclosure outweigh those in favour of disclosure. 44The Respondent submits that the Applicant has not provided evidence to show how its business is any more competitive than any other business. Nor has it supported its concern that if the information was in the hands of its competitors it would be published. The Respondent submits that this is highly hypothetical. No evidence has been provided to show that the Applicant's competitors have done so in the past, nor what the consequences may be. 45Further, the Respondent argues that the Documents prove that the Applicant is compliant with relevant legislation. 46The Respondent argues that the Applicant has not provided evidence that would support its concern that AANMS may make disclosures and name practices which may have been non-compliant with standards that AANMS has set. Further, the Respondent argues that the Applicant's evidence does not explain how the information in the Documents is commercially sensitive. 47The Respondent considers that the case of Fulham v Director General, Department of Environment and Conservation is very applicable here. It says that the Documents establish that compliance and due process has taken place. It further says that there is a public interest consideration in favour of releasing information that assures the public at large and patients in particular, that the use of radiation equipment is properly oversighted and is safe for people and the environment. It is important to inform the public of the actions taken by the EPA and practitioners to ensure compliance with the Radiation Control Act 1990 and regulations. 48The Respondent says that the Documents show how it deals with non-compliance issues, and hence the release would enhance government accountability and maintain and advance a system of responsible government that is open, accountable, fair and effective. The Respondent agrees with the Applicant that there was no risk to the public, as the breaches had been rectified. The Respondent argues that this adds to the public interest in disclosure. Members of the public, if able to read about compliance of practitioners, can feel safe when receiving or being exposed to radiation for treatment or diagnostic purposes. 49The Respondent submits that if the public interest considerations in favour of disclosure outweigh those against disclosure, then the information must be released. It says that the information constitutes evidence that the EPA is vigilant in their oversight of radiation licence conditions and that the Applicant took appropriate actions to comply. Without further evidence or details about how the release of these records could reasonably be expected to affect the business, commercial, professional or financial interests of the Applicant, the public interest considerations in favour of release outweigh the public interest considerations against disclosure and the information should be released. 50the Respondent contends that the Applicant's proposed redactions would render the Documents meaningless, as they would be totally de-identified. It says that the release of the Documents in the redacted form would provide little public benefit because of the lack of context. 51The Respondent's view is that information released under the GIPA Act should be made publicly available for other members of the public, unless there is an overriding public interest against disclosure. It contends that placing an entry in the disclosure log shows transparency of the Respondent's actions and allows members of the public to access information released under the GIPA Act. The disclosure log supports the objective of the GIPA Act by giving members of the public access to information where it is in the public interest. It also helps to promote open government and transparency around government decision-making and the effective performance of agencies' functions. 52In the Respondent's submission the type of information contained in the Documents are of interest to the public, to advise them of proper compliance, the method followed to do so and the actions taken by practitioners such as the Applicant, in order to meet the standards and conditions of their licence. It says that radiation is a topic of public interest and without additional evidence from the Applicant supporting the reasons for its objection, an entry should be made in the disclosure log, as required by section 25 of the GIPA Act. 53It is the Respondent's view that the Applicant has not discharged its onus to establish an overriding public interest against disclosure of the information. Therefore the information should be released in full.

Discussion 54The approach to weighing the public interest considerations in favour of disclosure and those against disclosure is now well established: see for example the discussion of the balancing test in Commissioner, NSW Police Force v Camilleri [2012] NSWADTAP 19 at paragraph [25]. 55Where a decision maker forms the view that one or more of the public interest considerations against disclosure in subsection 14(2) applies, the decision maker's task is to weigh these considerations against disclosure against the public interest considerations in favour of disclosure for the purpose of determining whether there is an overriding public interest against disclosure (the section 13 public interest test). That is, in such circumstances, the decision making process a three step process: (a) identifying the public interest considerations in favour of disclosure (which are not closed), (b) identifying the public interest considerations against disclosure (which are closed as per section 14 of the GIPA Act) and then (c) determining where the balance lies. 56It is not in dispute that it is for the Applicant to establish that there is an overriding public interest against disclosure of the information. I note that the Applicant submitted that the Documents contain information which does not fall within the scope of the Access Applicant's request. I do not agree with the submission. The access application was broad in its terms. The Documents contain information about reports on lost radiation sources and unauthorised radiation practices or processes as requested by the access application. For the same reason I do not agree that that information about the practice arrangements in terms of location and staffing agree are outside the scope of the access application. 57The Applicant contends that the Documents contain information which is commercially sensitive. It is clear from the face of the documents that that is the case. However, it is equally clear that the Respondent is correct in its observation that the Documents prove that the Applicant is compliant with the Radiation Control Act and Regulations. They show that the alleged breaches of the legislation had been rectified. 58The Respondent has set out a number of public interest considerations in favour of disclosure. I agree with that assessment. 59While I accept that the release of the Documents has the potential to disclosure information which is commercially sensitive, I am not satisfied that the Applicant has established that the release of the information could reasonably be expected to have an unreasonable adverse effect on the Applicant's affairs. In this regard while I agree with the Applicant that the nature of the content of the Documents is different to that in Fulham, I agree with the Respondent that my views expressed in Fulham are applicable. 60The Applicant has only speculated that its affairs might be affected by the misuse of information. There is nothing in the documents themselves that could adversely affect those affairs. On the contrary, the release of the Documents would prove that the Applicant is compliant with the applicable legislation. I also note that the Documents were created some two years ago and it is likely that the immediacy of the Applicant's concerns has been lost due to the passage of time. 61I have taken into account the various public interest considerations and in my view, the Applicant has not established an overriding public interest against disclosure of the information. 62I also agree with the Respondent that the release of the Documents in the redacted form would provide little public benefit because of the lack of context. Therefore the information should be released in full. 63In regard to the disclosure log, I also agree with the Respondent that disclosure is appropriate so as to enable to members of the public to read about compliance of practitioners. 64That being the case, it is my view that the Respondent's decision was the correct and preferable one.

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: 17 September 2014

Southern Radiology Nuclear Medicine v Environmental Protection Authority

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