Turner v Illawarra Shoalhaven Local Health District

Preliminary matters

1. A close family member of the applicant, that I shall refer to as "FM1", has received medical treatment from respondent. The applicant informed the Tribunal that he is concerned about certain conduct by the respondent in the course of the respondent's treatment of FM1 and in the respondent's dealings with him subsequently.
2. At the outset of the hearing the Tribunal explained to the applicant that the scope of the Tribunal's review is limited to the applicant's access application under the GIPA Act. The Tribunal is only able to consider matters relevant to the determination of this issue.
3. The applicant referred to and relied heavily upon the Review report of the Information Commissioner under the GIPA Act dated 31 January 2024. However, as indicated at [31], the respondent reviewed its position during the course of these proceedings in the light of the Review report and decided that further information should be released to the applicant. As the decision had not been remitted to the respondent (see [34]), the respondent sought orders from the Tribunal for its decision to refuse access to Documents 13-15, 18 and 46 (and for partial access Document 33) to be varied to disclose the information to the applicant in accordance with the amended schedule annexed to the respondent's submissions dated 6 May 2024 and the open bundle of documents assembled in accordance with that amended schedule and filed on 7 May 2024. The respondent otherwise sought for its decision to be affirmed.

Material before the Tribunal

1. The applicant provided an affidavit, a bundle of documents and written submissions to the respondent and Tribunal.
2. The respondent provided an open bundle of material, a confidential bundle, an affidavit of Ms Bronwyn Tolhurst, an affidavit of Dr David Alcorn (both open and confidential versions) and written submissions to the applicant and Tribunal.
3. Both parties each made oral submissions at the hearing.

Witnesses

1. Two witnesses were required by the applicant for cross examination at the hearing: 1. Ms Bronwyn Tolhurst, Acting Head of Legal, employed in the Legal Services Team of the respondent. 2. Dr David Alcorn, Clinical Director of the Mental Health Service of the respondent.
2. Ms Tolhurst and Dr Alcorn were cross examined during the open hearing. Dr Alcorn gave evidence by AVL.
3. A closed hearing was held on 25 July 2024 interposed between a break in the open hearing pursuant to s 107 of the GIPA Act. For the purposes of this review further orders will be made prohibiting publication, broadcast or disclosure of the confidential material or any part of a closed hearing and preventing disclosure of any part of a paragraph in these reasons that commences with [NOT FOR PUBLICATION], other than the words in those brackets.

Further confidential material filed by the respondent

1. Documents 16 and 36 were not filed by the respondent with the confidential bundle of documents referred to at [39]. The Tribunal made orders for the respondent to file these documents on a confidential basis following the hearing. The Tribunal also made orders for the respondent to file any submissions concerning the evidence provided during the confidential hearing. The respondent complied with these orders and following the hearing filed Documents 16 and 36, and further submissions (both open and confidential versions). The confidential versions of these documents are subject to non-disclosure and non-publication orders made by the Tribunal under s 64 of the CAT Act.

Consideration

1. The Tribunal was able to review and consider unredacted versions of the documents relevant to the applicant's access application.

Excluded information - complaints handling and investigative information

1. I have considered Documents 16 and 36 that the respondent claimed to be confidential correspondence and attachments between the respondent and an external reporting agency, the Health Care Complaints Commission (HCCC), excluded under s 43 and cl 2, Schedule 2 of the GIPA Act as they relate to the complaint handling function of the HCCC, which has not consented to their release.
2. The Appeal Panel in Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [77] considered that the words "relates to" (from the definition of "excluded information" in Schedule 4) should be given a "broad meaning" and indicate a legislative intention that information which has a "broad connection" with the excluded function will be excluded information for the purposes of s 43(2).
3. I am satisfied that Documents 16 and 36 constitute information relating to the complaint handling functions of the office of the HCCC. I am also satisfied that the HCCC has not consented to the disclosure of the information. As a result, the information is excluded information and there is a conclusively presumed overriding public interest against disclosure of that information. I am satisfied that these documents are excluded and are not required to be released under the GIPA Act.

Conclusive presumption - legal professional privilege (LPP)

1. Section 14(1) of the GIPA Act provides that 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 Tribunal summarised the requirements for LPP to be established in Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127 at [34]-[36] as follows: In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are: (1) the existence of a client and lawyer relationship; and (2) the confidential nature of the communication or document; and (3) the communication or document was brought into existence for the dominant purpose of either: (a) enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or (b) for use in existing or anticipated litigation. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995 (NSW). It is not only the primary record of the advice that is privileged. Summaries of the advice and documents recording instructions to provide legal advice attract the privilege if they are prepared or made for the purpose of providing advice to a client: Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 at [30]; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [34].
3. The party asserting or claiming LPP bears the onus of establishing the claim for privilege and is met by establishing the facts giving rise to the claim.
4. Where issues are raised about the purpose of the disputed documents and whether that purpose was improper, it is for the party raising the issue to present evidence to support the claim. Although the applicant made brief mention of "fraud committed by ISLHD" in his written submissions in relation to the respondent's LPP claim, no further particularisation or evidence of any sort was provided by the applicant to support such a claim and therefore the Tribunal did not consider this further.
5. The Tribunal considered LPP in the context of communications between a government agency and its in-house lawyers in Jackson v University of New South Wales [2019] NSWCATAD 224 at [102]: "… legal professional privilege equally applies to confidential communications between government agencies and their salaried legal officers, provided that there existed, at the time of the confidential communication, a relationship of lawyer and client and the requirements of ss 118 and 119 are otherwise satisfied: Waterford v Commonwealth [1987] HCA 25 (Waterford), (1986)-(1987) 163 CLR 54, at [4], Mason and Wilson JJ where their Honours said: 4 … [Whether], in any particular case, a relationship is such to give rise to the privilege is a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment."
6. In Jackson v University of New South Wales [2019] NSWCATAD 224 the Tribunal observed that LPP may be waived in certain circumstances, with the onus being on the party claiming the waiver to establish this on the balance of probabilities at [115]-[116]: Section 122 of the Evidence Act deals with the loss of client legal privilege. In essence privilege is lost where the client, in whom the right to claim privilege over a confidential communication, has acted in a manner that is inconsistent with that right by knowingly and voluntarily having disclosed the substance of the communication to another person, or the substance of the communication has been disclosed with the express or implied consent of the client: see also Mann v Carnell (supra), at [29]. Under s 122 of the Evidence Act and at common law, the party claiming that there has been a waiver bears the onus to prove, on the balance of probabilities, that the client has acted in a manner that is inconsistent with its right to claim privilege over the communication.
7. The documents that are the subject of this claim have been provided to the Tribunal on a confidential basis.
8. Ms Bronwyn Tolhurst is Acting Head of Legal employed in the Legal Services team of the respondent. Ms Tolhurst deposed in her affidavit as follows. 1. Ms Tolhurst was appointed to the role of Acting Head in April 2024 and has worked as Senior Lawyer in the respondent's Legal Services team for over four years. 2. Ms Tolhurst provided evidence regarding her duties and qualifications, and of the Legal Services team of the respondent. The Legal Services team is responsible for providing legal advice and services to the staff of the respondent (including providing legal representation) and managing the engagement of external legal services. All "in house" lawyers employed by the respondent are required to hold current practising certificates and are expected to provide impartial and independent legal advice in carrying out their duties. A position description of a lawyer in the respondent's legal team was annexed to Ms Tolhurst's affidavit to verify these matters. 3. In order to provide legal services, the Legal Services team has requested that all staff of the respondent contact them via the Legal Services shared mailbox. In practice, however, staff will generally contact an individual solicitor within the Legal Services team by telephone, MS Teams, or email. 4. Sometimes in contacting the Legal Services team, a staff member of the respondent will copy in other members of their team or division into their correspondence to indicate that the request for legal advice or services is for or being made on behalf of the whole team or division and that all the persons copied in should be provided with the advice or updated on the provision of the legal service. 5. All members of the Legal Services team have access to the Legal Services shared mailbox and the legal services file management system "TRIM". The legal services coordinator is usually responsible for responding to all administrative enquiries and triaging requests that raise legal issues for solicitors to consider and respond. 6. Ms Tolhurst stated that from 27 May 2022 the Legal Services team has received requests for legal advice in relation to the applicant's access applications and his conduct towards staff of the respondent. Ms Tolhurst has been primarily responsible for responding to those requests since 9 August 2022. Ms Tolhurst deposed that as far as she is aware, the requirements of confidentiality contained in the respondent's policies, and the NSW Health policies and directives, were observed in respect of these communications. 7. It is Ms Tolhurst's practice to mark communications which contain legal advice to staff members of the respondent as "Confidential", "Privileged", "Sensitive", or with some other explicit indication of confidentiality.
9. A description of the withheld information is included below, together with the basis for the LPP claim provided by Ms Tolhurst in her affidavit: 1. Document 13 is an email dated 14 July 2023 from a senior manager of the respondent to another staff member of the respondent, forwarding an email chain between Legal Services Team staff and senior management of the respondent. A claim for LPP is maintained in part of the document (part of an email dated 30 March 2023 - marked "confidential"). The redacted passage in this correspondence refers to a communication between Ms Tolhurst and a senior manager in relation to the legal advice Ms Tolhurst provided on the respondent's complaint management process. 2. Document 15 is an email dated 14 July 2023 from a senior manager of the respondent, to himself, containing a copy of Document 18. A claim for LPP is maintained in that part of the document (for the reasons stated at [57(3)]). 3. Document 18 is an email chain between Ms Tolhurst from the Legal Services Team shared mailbox to ten senior managers of the respondent dated 10 November 2022. A claim for LPP is maintained in part of the document. The redacted passages in this correspondence refer to a communication between Ms Tolhurst and senior management of the respondent in relation to providing legal services in respect of an application under the GIPA Act made by the applicant. This email is marked with "Privileged and Confidential - do not share forward or file". 4. Document 34 is an email dated 30 June 2023 from the Executive Assistant to the Chief Executive of the respondent to the Legal Services Team shared mailbox. Attachment 3 to the email is a briefing note from the Chief Information Officer dated 14 March 2023 to the Chief Executive. A claim for LPP is maintained in part of the document. The redacted passages refer to confidential information in communications between the New South Wales Crown Solicitor's Office and the respondent regarding the outcome of the internal review of an application under the GIPA Act made by the applicant (not the current application). 5. Document 37 is an email dated 16 May 2023 from the Executive Assistant to the Chief Information Officer of the respondent to the Executive Assistant to the Chief Executive of the respondent. Attachment 1 to the email is a briefing note from the Chief Information Officer dated 16 May 2023 to the Chief Executive. A claim for LPP is maintained in part of the document. The redacted passage refers to confidential information in communications between the New South Wales Crown Solicitor's Office and the respondent regarding the outcome of the internal review of an application under the GIPA Act made by the applicant (not the current application). 6. Document 46 is an email dated 30 March 2023 between a senior manager of the respondent and another employee of the respondent, containing a copy of document 13 (subject to a claim of LPP for the reasons stated at [57(1)]) and a risk assessment completed in respect of the applicant as an attachment. The email is marked "confidential". The redacted passage refers to legal advice that Ms Tolhurst provided by telephone to a senior manager of the respondent in relation to the Risk Assessment.
10. It is the respondent's position that it would be apparent to the Tribunal, on review of the information over which a claim of LPP is made, that the requirements are made out on the following basis: 1. In the case of Documents 13 and 46, for the dominant purpose of the Legal Services Team providing legal advice to senior management of the respondent. 2. In the case of Documents 15 and 18, for the dominant purpose of the Legal Services Team providing legal services to senior management of the respondent. 3. In the case of Document 34, for the dominant purpose of the NSW Crown Solicitor providing legal services to the respondent. 4. In the case of Document 37, for the dominant purpose of the NSW Crown Solicitor providing legal advice to the respondent.
11. The applicant has not asserted that there has been a disclosure or waiver of the information the subject of the LPP claim. The respondent's position is that privilege has not been waived and the information should not be released. The evidence of Ms Tolhurst is that only the Chief Executive of the respondent has the authority to waive LPP, and a decision to do so first requires approval from the Head of Legal and subsequent approval from the Chief Executive. Ms Tolhurst stated that she did not approve any waiver of LPP and therefore no decision was made by the Chief Executive to waive privilege in the information in Documents 13, 15, 18, 34, 37 and 46 that is claimed to be subject to LPP. I accept the evidence of the respondent, and I am satisfied that LPP has not been waived.
12. Although Ms Tolhurst was cross examined, little further information was provided in elaboration of the above.
13. The applicant submits that a person in Ms Tolhurst's position is in a difficult position, due to their own interests in climbing the corporate ladder, together with pressure from hospital management to conform, which means that they are always at risk of being manipulated to exercise their responsibilities in a way that favours the organisation.
14. I find Ms Tolhurst to be a witness of credit. I accept her evidence as to the responsibilities and practices of the respondent's Legal Team and have no reason to doubt her independence or professionalism in fulfilling her duties as Acting Head of Legal and a Senior Lawyer before that.
15. I have reviewed the documents over which the claim of LPP is made. I find as follows.
16. The parts of the Document 13 the subject of the LPP claim are confidential communications between a lawyer (Legal Services Team of the respondent) and the client (senior management of the respondent), for the dominant purpose of the Legal Services Team providing legal advice to senior management of the respondent.
17. The parts of Document 15 the subject of the LPP claim are confidential communications between a lawyer the (Legal Services Team of the respondent) and the client (senior management of the respondent) for the dominant purpose of the Legal Services Team providing legal services to senior management of the respondent.
18. The parts of the Document 18 the subject of the LPP claim are confidential communications between a lawyer the (Legal Services Team of the respondent) and the client (senior management of the respondent) for the dominant purpose of the Legal Services Team providing legal services to senior management of the respondent.
19. The parts of Document 34 Attachment 3 the subject of the LPP claim refer to confidential communications between a lawyer (Office of the NSW Crown Solicitor) and the client (the respondent) for the dominant purpose of the NSW Crown Solicitor providing legal services to the respondent.
20. The parts of Document 37 Attachment 1 the subject of the LPP claim refer to confidential communications between a lawyer (Office of the NSW Crown Solicitor) and the client (the respondent) for the dominant purpose of the NSW Crown Solicitor providing legal advice to the respondent.
21. The parts of Document 46 the subject of the LPP claim are confidential communications between a lawyer (Legal Services Team of the respondent) and the client (senior management of the respondent), for the dominant purpose of the Legal Services Team providing legal advice to senior management of the respondent.
22. Accordingly, in each case I am satisfied that LPP applies to the redacted information in the documents over which the claim for LPP has been made.

Overall conclusion regarding claim of LPP

1. The information over which LPP applies falls within the scope of clause 5 of Schedule 1 to the GIPA Act. Therefore, it is to be conclusively presumed that there is an overriding public interest against disclosure of the information.
2. Where the information is subject to a conclusive presumption against disclosure pursuant to section 14(1) of the GIPA Act, the "public interest test" set out in section 13 is not enlivened.
3. In these circumstances, the decision to provide partial access to Documents 13, 15, 18, 34, 37 and 46 was the correct and preferable decision. The decision is affirmed where it relates to the information over which a claim of legal professional privilege is made.

The public interest test

1. The respondent must satisfy the threshold for each public interest consideration against disclosure from the Table to s 14(2) of the GIPA Act that it relies upon, being that the disclosure of the relevant information "could reasonably be expected to" have one or more of the stated effects (whether in a particular case or generally). The words "could reasonably be expected to" require something which is more than a mere risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary, or contrived: Taylor v Destination NSW [2017] NSWCATAD 272 at [23].
2. The correct approach of the Tribunal in determining whether there is a public interest against disclosure (s 13 of the GIPA Act) is to: 1. consider the public interest considerations in favour of disclosure, 2. consider the public interest considerations against disclosure, and 3. determine where the balance lies between them (Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19, [23]-[30]).
3. This balancing exercise is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation" (Hurst v Wagga City Council [2011] NSWADT 307 at [94]).

Public Interest considerations in favour of disclosure

1. In addition to the general presumption in favour of disclosure of government information set out in s 12 of the GIPA Act, the respondent identified the following considerations favouring disclosure of the information to the applicant: 1. That some of the information is personal information relating to the applicant; and 2. That some of the information related to a close family member of the applicant.
2. I agree with the respondent that these are applicable public interest considerations in favour of disclosure.
3. The personal factors of the applicant are matters that can be taken into account in favour of providing the applicant with the information sought pursuant to s 55 (1) and (2) of the GIPA Act.
4. The issues raised by the applicant in the material he provided to the Tribunal that have led him to seek information from the respondent are referred to at [35]. The applicant's stated objective in lodging the access application under the GIPA Act and in seeking review in this Tribunal is to obtain as much information as possible from the respondent in order for him to ascertain the truth behind the respondent's handling of these matters.
5. The applicant cited the Review report of the Information Commissioner in his application for review. The Review report of the Information Commissioner is of limited usefulness because the respondent has since changed its reliance on certain public interest considerations against disclosure from Table 14(2) of the GIPA Act - cl 3(a) is not relied upon and reliance is now placed on cl 1(f) - and additional information is provided by the respondent to justify its position.
6. The respondent acknowledged that the applicant does have a legitimate interest in understanding the information held by the respondent which relates to him, but submitted that: a. this interest has been substantially addressed by the release of information to the applicant in response to his request; and b. to the extent that the information in dispute contains personal information, it cannot be readily separated from [FM1's] personal information.

Public interest considerations against disclosure

1. The respondent relied upon the public interest considerations against disclosure in cll 1(f) and 3(b) of the Table to section 14 of the GIPA Act as grounds for refusing access to the information.

Clause 1(f) of the s 14 Table

1. The issue for determination relating to cl 1(f) is whether the release of the information could reasonably be expected to "prejudice the effective exercise by an agency of the agency's functions".
2. In Newton v Newcastle City Council [2022] NSWCATAD 18 the Tribunal summarised the elements for cl 1(f) to be established as follows: 1. there is an agency function relevant to the information; and 2. disclosure of the information could reasonably be expected to prejudice the agency's exercise of that function.
3. The respondent contends that cl 1(f) applies as a public interest consideration against disclosure of information contained in Documents 1-5, 8-11, 13, 15, 17-35, 37-48 (being the direct contact details of certain individual staff members and FM1's health information).
4. The respondent submits that it has the following functions: 1. to ensure the health and safety, welfare and wellbeing of its staff (and other persons, including patients) under Part 2 of the Work Health and Safety Act 2011 (WHS Act), and 2. to provide health care services under s 10 of the Health Services Act 1997 (HS Act).
5. Each of these functions and the relevant documents are dealt with separately below.

WHS Act functions

1. Section 3 of the WHS Act places an obligation on the respondent to protect its staff against harm to their health, safety and welfare through the elimination or minimisation of risks arising from their work.
2. Section 19(2) of the WHS Act requires the respondent to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
3. The respondent referred to the evidence of Dr Alcorn that: 1. The applicant's conduct towards staff members who have dealt with his complaints has been distressing for those staff members and affected their ability to perform their other tasks. 2. To address the concerns expressed by staff members, a standard procedure has been adopted to manage the applicant's communications with staff members. The procedure consists of administrative staff: 1. using a telephone script to follow if they are phoned by the applicant, 2. delivering a warning to the applicant if his behaviour escalates, 3. terminating the call if the applicant's responses remain elevated following the warning, 4. following the call, to notify their service manager of the call, 5. the service manager is to then notify senior management.
4. The respondent provided limited evidence of the conduct of the applicant which would lead to the development of such measures. There was no evidence provided to the Tribunal about how often these procedures have been required to be utilised (if at all). Dr Alcorn stated in his affidavit that: 9 I am informed that several of the documents responsive to the applicant's access application contain the extension phone numbers of staff members of the ISLHD and/or the address of their office at the ISLHD. 10 I understand that these individuals have objected to the release of this information to the applicant. Because of their objections, the information was redacted before the documents were provided to the applicant. 11 I am informed by several members of staff at the ISLHD that, during the period in which they have dealt with the applicant's complaints, his conduct has caused them distress and affected their ability to perform their other tasks. I am also informed that his conduct has on occasions been viewed as intimidatory and an attempt to pressure staff members dealing with his complaints to handle those complaints in a way that was favourable to him. I also recall interacting with a staff member following their interaction with the applicant and how shaken they were from that interaction.
5. The respondent submits that given the nature of the applicant's past conduct towards its staff members, releasing the direct contact details of individual staff members to the applicant would compromise the health and safety of those individuals as they would: a. feel unsafe attending their workplace; and b. likely experience anticipatory anxiety, which cannot be managed by the respondent.
6. The respondent contends that it would be prejudiced in effectively performing its WHS functions as follows: This in turn would impair the respondent's ability to ensure health and safe workplaces by preventing or removing risks to the physical and psychological safety and wellbeing of staff, resulting in an increased risk of staff burnout, absenteeism and/or departures.
7. The applicant cross examined Dr Alcorn. The applicant submitted that the Tribunal should reject the personal opinions of Dr Alcorn as his statements were for his own benefit. The applicant argued that a person seeking information from the respondent was not instantly a WHS issue and that he has no history of behaving in the manner alleged.
8. The applicant provided a very different version and submitted in his affidavit that the accusations that he has behaved in a way that has intimidated or caused distress to the staff of the respondent are completely unfounded. The applicant stated: 20. I feel strongly that in the Mental Health Unit all the doctors and staff support each other to cover up poor care. ISLHD staff go into "damage control" when someone complains and then accuse the family member of intimidation just when they ask about policy and procedures. The staff work together to character assassinate family members. They pretend to care in person or on the phone while doing the opposite in private. I didn't believe before experiencing this that anyone could stoop so low. 21. David Alcorn and the psychiatrists work together - all are employed to do what's in the best interests of ISLHD instead of the patient/consumer. They treat families that care like the enemy and the staff are vindictive.
9. It is clear that the applicant feels strongly about his reasons for contacting the respondent. The applicant has repeatedly sought information from the respondent and has asked questions that the staff of the respondent may have found difficult and at times uncomfortable. It is likely that the applicant has been frustrated by his interactions with the respondent in which, to use his words, he claims to have been "stonewalled", "deceived", "deliberately misled", "psychologically manipulated" and "gaslighted". Although he has been persistent, there is no evidence before the Tribunal that he has been rude, aggressive, or violent in his dealings with the respondent. I am not satisfied that he has behaved in an intimidatory way towards the staff of the respondent.
10. The applicant's position regarding the contact information of the staff of the respondent over the course of the proceedings was less than clear. The applicant stated in his affidavit that: 23. […] staff member names and extension phone numbers can easily be redacted.
11. Later in his affidavit the applicant submitted that: 30. There is zero risk to ISLHD staff by releasing GIPA information to me and releasing GIPA data is important to maintain the ideals and purpose of the GIPA Legislation. GIPA Legislation is an important path to find out the truth.
12. The applicant stated in oral submissions at the hearing that he is seeking the names of staff members and would prefer all the documents. Although not specifically stated, I have taken this to mean that he also seeks the staff phone numbers and locations of offices that have been withheld by the respondent.
13. It is not clear to the Tribunal why the applicant would require the direct staff phone numbers and the location of the offices of individual staff members of the respondent, and what value this would provide to the documents sought. This information does not appear to be directly relevant to the terms of the applicant's access application.
14. I have reviewed the information in Documents 1-5, 8-11, 13, 15, 17-35, 37-48 that the respondent has refused access to in reliance on cl 1(f) in this way. I confirm that the information that has not been disclosed to the applicant is the extension phone numbers or mobile phone numbers of certain staff members of the respondent and/or the location of their offices at the respondent's premises. The names of staff members in the documents have already been disclosed according to the versions that the Tribunal has been provided. I am satisfied that the relevant information in these Documents is information held by the respondent. I must now consider whether disclosure of the information "could reasonably be expected to" have the effect described in cl 1(f) of the Table.
15. For cl 1(f) to be applicable, there must be functions of the respondent relevant to the information sought by the applicant. In this case I am satisfied that the respondent's relevant functions include ensuring the health and safety, welfare and wellbeing of its staff and other persons, including patients, under Part 2 of the WHS Act (as required by ss 3 and 19(2) respectively). The question is whether disclosure of this information could reasonably be expected to prejudice the effective exercise of the respondent's functions in the future.
16. I accept Dr Alcorn's evidence at [92] that the relevant staff members of the respondent have objected to their direct work phone numbers and office locations being released to the applicant. I also accept that the respondent considers this to be a health and safety issue for its staff as referred to at [93]-[94] above. I have carefully considered the applicant's evidence provided in rebuttal. While I do not accept the characterisation of the applicant put forward by the respondent as someone who behaves in a way that intimidates and pressures its staff, I do note that the applicant's persistent and repetitive contact with the staff of the respondent over time may result in a psychological impact that could adversely affect the wellbeing of particular staff members. The respondent does not appear to have taken an unreasonable or indiscriminate approach to the matter. I note that the names and email addresses of all of the staff members referred to in the documents have been released. I also note that the direct office numbers of certain senior managers and in at least one case the mobile phone number of an Acting General Manager from the respondent have been released to the applicant.
17. I am satisfied that releasing this information could reasonably be expected to prejudice the effective exercise of the respondent's functions for the reasons stated.
18. I find that the public interest consideration against disclosure in cl 1(f) applies in this review.

HS Act functions

1. The respondent submitted that its functions under the HS Act include: 1. generally to promote, protect and maintain the health of the residents of its area (see s 10(a)), 2. to conduct and manage public hospitals, health institutions, health services and health support services under its control (see s 10(b)), and 3. to achieve and maintain adequate standards of patient care and services (see s 10(d)).
2. The respondent referred to Dr Alcorn's evidence that: 1. Confidentiality is important in a local health district's provision of mental health care, which is based on establishing trust and open communication with patients. 2. Maintaining the confidentiality of a patient's health information is fundamental to the trust relationship between patient and mental health care practitioner and the ability to accurately assess the state of a patient's mental health and determine the appropriate treatment for them. 3. To release a patient's health information without their express consent would impair the relationship of trust and adversely impact the respondent's ability to provide mental health care to its patients (including the applicant's close family member FM1) as the respondent may not be able to obtain all the relevant information required to assess and treat its patients.
3. The applicant did not dispute that the requirements of confidentiality apply to the health information held by the respondent, including the health information of FM1. The applicant acknowledged in his oral submissions the difficulties in obtaining the consent of FM1 in order for the respondent to provide FM1's health information to him. The applicant contended that if the respondent had supported him becoming FM1's guardian like the staff of the respondent said they would, then this wouldn't be an issue. However, as it stands, the applicant does not have the consent of FM1 for the respondent to release the information to him, and no evidence has been provided to the Tribunal to the contrary.
4. I have reviewed the information in Document 30 (Attachment 1), Document 34 (Attachment 3) and Document 46 (Attachment 1) that the respondent has refused access to in reliance on cl 1(f) in this way. I confirm that the information that has not been disclosed to the applicant is FM1's health information. FM1 is a person to whom the respondent has provided mental health care. I am satisfied that the relevant information in these Documents is information held by the respondent. FM1 has not provided consent for the information to be released to the applicant. I must now consider whether disclosure of the information "could reasonably be expected to" have the effect described in cl 1(f) of the Table.
5. For cl 1(f) to be applicable, there must be functions of the respondent relevant to the information sought by the applicant. I am satisfied that the respondent's relevant functions (as required by ss 10(a), (b) and (d) of the HS Act respectively) include: 1. to promote, protect and maintain the health of the residents of its area, 2. to conduct and manage public hospitals, health institutions, health services and health support services under its control, and 3. to achieve and maintain adequate standards of patient care and services.
6. The question is whether disclosure of this information could reasonably be expected to prejudice the effective exercise of the respondent's functions in the future.
7. I accept Dr Alcorn's unchallenged evidence that upholding the confidentiality of patient health information is critical to developing and maintaining a relationship of trust between the local health district and its patients for the provision of appropriate and effective mental health care. The provision of accurate information from patients to the health district could indeed be compromised if the respondent is unable to safeguard this information. I agree with the respondent that releasing this information to the applicant could reasonably be expected to prejudice the effective exercise of the respondent's functions.
8. I find that the public interest consideration against disclosure in cl 1(f) applies in this review.

Clause 3(b) of the s 14 Table

1. The issue for determination relating to cl 3(b) is whether the disclosure of the information could reasonably be expected to "contravene […] a Health Privacy Principle under the Health Records and Information Privacy Act 2002" (the HRIP Act).
2. Schedule 1 of the HRIP Act provides the following Health Privacy Principle (HPP): 11 Limits on disclosure of health information (1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless -
3. Clause 11 then goes on to list specified circumstances in which the health information may be able to be released, none of which are applicable here.
4. Section 6 of the HRIP Act defines "health information" as follows: 6 Definition of "health information" In this Act, health information means - (a) personal information that is information or an opinion about - (i) the physical or mental health or a disability (at any time) of an individual, or (ii) an individual's express wishes about the future provision of health services to him or her, or (iii) a health service provided, or to be provided, to an individual, or (b) other personal information collected to provide, or in providing, a health service […].
5. Section 5 of the HRIP Act defines "personal information" as follows: (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
6. Section 4 of the HRIP Act defines "health service" as follows: 4 Definitions (1) In this Act - […] health service includes the following services, whether provided as public or private services - […] (c) mental health services,
7. The respondent submits that Document 30 (Attachment 1), Document 34 (Attachment 3) and Document 46 (Attachment 1) contain the personal information of a person who is not the applicant (FM1) that was collected in the course of providing a health service. The respondent submits that the disclosure of this information would contravene Sch 1, cl 11(1) of the HRIP Act as the disclosure would not be for the purpose of providing FM1 with a health service.
8. Clause 1 in Schedule 4 to the GIPA Act provides that to 'disclose' information includes "make information available and release or provide access to information." In circumstances where an applicant already has the information, its release would not 'disclose' that information. The "essence of disclosure" is "making known to a person information that the person to whom the disclosure is made did not previously know": Nasr v State of New South Wales [2007] NSWCA 101 at [127].

Closed hearing

1. [NOT FOR PUBLICATION]
2. As I noted at [109], FM1 has not provided consent for the information to be released to the applicant.
3. I have reviewed the information in Document 30 (Attachment 1), Document 34 (Attachment 3) and Document 46 (Attachment 1) that the respondent has refused access to in reliance on cl 3(b). I confirm that the information that has not been disclosed to the applicant is FM1's personal information, which is health information under the HRIP Act, that was collected in the course of providing a health service to FM1. I am satisfied that the relevant information in these Documents is information held by the respondent. I must now consider whether disclosure of the information "could reasonably be expected to" have the effect described in cl 3(b) of the Table.
4. In my view, releasing this information to the applicant would be disclosing personal information of FM1 that is not for the purpose of providing FM1 with a health service. Such disclosure would be for a purpose secondary to the primary purpose for which the information was collected by the respondent, in circumstances where none of the exceptions in Sch 1, cl 11(1) of the HRIP Act apply. Notably, FM1 has not consented to the disclosure of the information to the applicant. Therefore, disclosure of the information could reasonably be expected to contravene HPP 11 under the HRIP Act.
5. I find that the public interest consideration against disclosure in cl 3(b) applies in this review.

Balancing exercise

1. It is now necessary to attribute weight to the relevant considerations and balance the factors for and against disclosure to determine whether there is an overriding public interest against disclosure.

The public interest considerations in favour of disclosure

1. In weighing the competing public interest considerations, I have taken the general public interest in favour of disclosure and the public's legally enforceable right to government information into account. The personal factors of the application are also relevant. I find that each of these considerations should be given some weight.

The public interest considerations against disclosure

The consideration in cl 1(f) of the table to s 14

1. As noted at [106] I have found that the consideration in cl 1(f) of the table to s 14 is a public interest consideration against disclosure of the relevant information in Documents 1-5, 8-11, 13, 15, 17-35, 37-48 (WHS Act functions). This consideration should be given significant weight.
2. At noted at [114] I have found that the consideration in cl 1(f) of the table to s 14 is a public interest consideration against disclosure of the relevant information in Document 30 (Attachment 1), Document 34 (Attachment 3) and Document 46 (Attachment 1) (HS Act functions). This consideration should be given significant weight.

The consideration in cl 3(b) of the table to s 14

1. As noted at [127] I have found that the consideration in cl 3(b) of the table to s 14 is a public interest consideration against disclosure of the relevant information in Document 30 (Attachment 1), Document 34 (Attachment 3) and Document 46 (Attachment 1). This consideration should be given significant weight.

Balancing the public interest considerations in favour of and against disclosure

1. I find that the public interest considerations against disclosure of the unredacted Documents outweigh the public interest considerations in favour of disclosure of this information. Accordingly, there is an overriding public interest against disclosure of this information.

Conclusion

1. I am satisfied that the correct and preferable decision is to set aside the respondent's decision in part, to the extent that the decision to refuse access to the redacted information in Documents 13-15, 18, 33 and 46 is varied to disclose the information to the applicant in accordance with the amended schedule annexed to the respondent's submissions dated 6 May 2024 and the open bundle of documents assembled in accordance with that amended schedule and filed on 7 May 2024. The respondent's decision is otherwise affirmed.

Orders 1. The respondent's decision of 12 October 2023 is set aside in part. 2. In substitution: 1. the decision to refuse access to the redacted information in Documents 13-15, 18, 33 and 46 is varied to disclose the information to the applicant in accordance with the amended schedule annexed to the respondent's submissions dated 6 May 2024 and the open bundle of documents assembled in accordance with that amended schedule and filed on 7 May 2024; and 2. the respondent's decision is otherwise affirmed. 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, other than to the Tribunal and respondent, publication, broadcast or disclosure of: 1. the confidential evidence filed by the respondent in these proceedings is prohibited; 2. the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited; and 3. the contents of all paragraphs in these Reasons marked "[NOT FOR PUBLICATION]" other than the words in those brackets is prohibited.

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: 02 October 2024