Turner v Justice & Forensic Mental Health Network

NCAT Administrative and Equal Opportunity|2016-03-14

Solicitors: D Turner (Applicant in person) Curwoods Lawyers (Respondent) File Number(s): 1510399

REASONS FOR DECISION

The Respondent is an agency which provides health care to people in the adult correctional environment; in courts and police cells, to juvenile detainees, to those within the New South Wales forensic mental health system and in the community. The Applicant is a former patient of the Respondent.
The Applicant made an access application to the Respondent pursuant to the Government Information (Public Access) Act 2009 ("the GIPA Act"). In his access application dated 10 February 2015 he sought: (a) Regarding disclosure of material while held in correctional custody to 2009 - 2015 period: (i) psychiatric records; and relevant information (ii) records; and relevant information of physical injuries (iii) doctor's and optometrist's records and information to eye injury (b) Regarding disclosure of material associated to (NSW Police Force Sutherland Police); and Hurstville Crime Scene Unit (FSG) Forensic Services Group to their investigation held 30.05.2008 and any other held concerning Donovan Turner for 2008; noting possible corrupted forensic evidence to a "2007" alleged offence. (i) 1. Fingerprint evidence This evidence may be recorded upon document Forensic Examination Request Form (date unknown) 2008, as "Job No. J" (ii) 2. Physical evidence This evidence may be recorded upon document Forensic Examination Request Form (date unknown) 2008, as "Job No. J" (iii) 3. P967 Person DNA Request Form (date unknown) 2008 (18.6.2008?) Concerning incident 29.05.2008 … (c) Regarding disclosure for material and information to: (i) Inner ear Infection (ii) Dentist/s (iii) Buccal swab/s (iv) GIPA lodgement(s) (v) Forensic evidence receives; and analysed by laboratories/services/any other (vi) alleged "sexual element" by DPP at District Court Syd. 2008 Mention (d) Request disclosure of ALL information; and material rightfully owed to the Applicant under GIPA Act 2009; and any other written or unwritten law. … (e) NSW Police had falsely claimed that Turner had a diagnosed "Schizophrenia" illness and thus associated the disorder to the offence. Any information and material relevant is thus requested to be disclosed.

The Issues

As noted, the application for review contends that the Respondent "concealed/tampered with information". I agree with the Respondent that this raises the issue of whether or not the Respondent holds material that falls within the scope of the access application that it has not disclosed to the Applicant.
I also agree with the Respondent that this requires consideration of the following: a. Whether the Respondent has located all of the information falling within the scope of the access application; b. Whether the Respondent has given the Applicant access to all the information to which he is entitled; c. Whether information to which the Applicant was not given access was "excluded information";
In order to determine whether the Respondent has located all of the information falling within the scope of the access application it is necessary to consider the steps it took to locate the information and whether it has satisfied its obligations under section 53 of the GIPA Act. Section 53 provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

Other Applicable Legislation

The objects of the GIPA Act are set out in section 3 as follows: (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.
Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 43 of the GIPA Act provides that an access application cannot be made to an agency for "excluded information" of the agency. An access application is not valid to the extent that it requests "excluded information".
There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction.
Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies on the Respondent.
Section 112 of the GIPA Act provides: 112 Report on improper conduct If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
Clause 6 of Schedule 1 to the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information, to the disclosure of which, the agency has consented. 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
Schedule 2 of the GIPA Act provides for excluded information of particular agencies. It defines excluded information to include information concerning certain categories of "Complaints handling and investigative functions", including: … The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993 ) relating to a particular complaint). …

Material before the Tribunal

The Respondent relies on evidence from Mr Gurdev Singh, Ms Janice Dyer, Ms Dawn Carr and Mr Michael Sterry. Each of those witnesses provided statements in support of the Respondent's case.
The Applicant has not filed any statements in support of his case however he has put a significant amount of material before the Tribunal and has made submissions in regard to that material and the types of information that he seeks and that he contends should be held by the Respondent.

Gurdev Singh

Mr Singh's statement dated 21 December 2015 is in evidence. Mr Singh appeared at the hearing and was cross-examined. His evidence was not changed in any material way as a result of that cross-examination.
At relevant times he was a Legal Advisor and Right to Information Officer with the Respondent. He commenced in the role of Right to Information Officer in about August 2015. He left his role as Legal Advisor in February 2016.
He instructed Ms Dyer to undertake a review of the clinical records relating to the Applicant to ensure that all documents falling within the scope of the access application had been identified. It became apparent that not all of the Applicant's health record had been produced to him. Additional documents that were identified through Ms Dyer's searches were provided to the Applicant in late September 2015.
Mr Singh subsequently caused further searches to be undertaken of the Respondent's records. In November 2015 he instructed Ms Carr to conduct searches of the Respondent's TRIM system to identify any documents stored on TRIM that fell within the scope of the Applicant's access application. Further documents were identified through Ms Carr's searches.
Mr Singh reviewed those documents and also wrote to other agencies including the Health Care Complaints Commission to ascertain whether they had any objection to production of information related to those agencies. The Health Care Complaints Commission advised that it did not consent to the disclosure of documents relating to the processing of complaints. Having regard to that objection, Mr Singh decided not to produce any such documents to the Applicant.
Mr Singh also instructed searches to be undertaken of the G: and H: drives on the Respondent's server and of the PAS System. The PAS System records admissions, discharges, transfers, appointments and referrals. Two documents that fall within the scope of the Applicant's access application were identified within PAS and produced to the Applicant.

Janice Dyer

Ms Dyer's statement dated 21 December 2015 is in evidence. She is a qualified Health Information Manager and has been the Respondent's Manager, Health Information and Record Services ("HIRS") since November 2012. In that role she is required to protect and manage health records held by the Respondent. The Respondent maintains both hard copy paper records concerning patients and also electronic records. Ms Dyer manages databases which contain electronic records and which identify the location of paper records.
Ms Dyer gave evidence in regard to the systems employed by the Respondent for recording and storing information and various policies designed to ensure that the Respondent is compliant with the legislation that governs health records.
TRIM contains all records other than the health records, relating to a patient within the system. Since March 2014 electronic health records have been retained within the Justice Health Electronic Health System ("JHEHS"). That system contains the following types of records:

Pathology results.
Reception Screening Assessment or "RSA" (initial assessment records);
Discharge summaries. These documents are generated in hard copy and stored in PDF format;
Information from health practitioners outside of the Respondent, stored in PDF format

PAS is a demographic database which contains information regarding the health records for each patient. It enables users to search for the location of a paper health records file concerning a patient. Electronic folders are marked with an identifying number. For patients within the adult prison system, that number is the Master Index Number ("MIN Number") allocated by Corrections to all offenders. For patients in the juvenile justice system, the number used is the CIM number which is allocated by Juvenile Justice. Patients at the forensic hospital at Long Bay have Medical Record Numbers ("MRNs).
Ms Dyer gave evidence that if the name of a patient is known, then a search by that name should reveal whether the patient has only a MIN number, or also an MRN number. If the MIN, or MRN of a patient is known, a search of the electronic health system using that number will reveal all of the documents contained in that system for that patient. A search of the TRIM system using a patient's name, MIN or MRN number will also identify records, other than health records, which are retained on that system concerning that patient.
The Respondent retains hard copies of the health records concerning a patient at the site at which the patient is based, from time to time. Those records follow the patient as they move between correctional facilities so that the health staff members at each centre have access to the patient's health history. The health record contains notes and other records generated by nursing staff, general practice doctors, and other specialist medical staff, including psychiatrists, who see the patient.
Ms Dyer stated that, apart from the documents which are contained on a patient's individual health record, the Respondent does not generate or retain other documents in hard copy format. For example, if a patient is seen by a psychiatrist, the psychiatrist is required to make notes in the "Progress Notes" section of the record. Those notes will include the psychiatrist's observations, the date and time of consultation and identifying information about the psychiatrist. If the psychiatrist provides a report, that will be retained with the health record of the patient. Any health practitioner who has seen a patient is required to make a note of their consultation in the Progress Notes in the same manner.
If a member of the Respondent's staff examines a patient, the Progress Notes should include any observations made by staff members about any injuries or condition reported to be suffered by a patient. A dental progress note is filed at the very back of the patient's health record behind a 'dental' divider.
Mental health nurses employed by the Respondent must document all treatment and interactions they have with their patients in that patient's health record. Clinical Nurse Consultants ("CNCs") undertake mental health reports, but only when requested by the Court and when that CNC is attached to the patient as a Court Liaison Officer. Mental health nurses, who are registered nurses, do not prepare reports on patients.
Ms Dyer stated that the Respondent does not employ psychologists, including any forensic psychologists. She stated that records generated by psychologists are not generated by the Respondent, nor are they kept with the Respondent's Record. Those documents are retained by the Department of Corrective Services.
Ms Dyer also stated that it is not customary for the Respondent to be in possession of New South Wales Police records. The Respondent plays no role in the investigation of crimes alleged to have been committed by patients. It does not carry out fingerprinting, DNA testing or other forensic procedures to obtain evidence in relation to criminal investigations. It plays no role in taking forensic samples, such as buccal swabs, from patients. It is not, as a matter of course, provided with material generated in Police investigations.
Correspondence to and from the Health Care Complaints Commission in regard to a complaint concerning the Respondent will only become a part of the health record where it is dealt with by HIRS. Otherwise, correspondence from and to the HCCC is retained on the TRIM system.
Ms Dyer referred to the Applicant's request for information relating to Dr Brownlea and stated that it appears from the documents provided by the Applicant that Dr Brownlea was employed at Sutherland Hospital by South Eastern Sydney Illawarra Health Service. Ms Dyer also stated that the Respondent does not have access, custody or control of records from Sutherland Hospital or South Eastern Sydney Illawarra Health Service.
Similarly, she stated that the Respondent does not have access, custody or control of records from the Division of Analytical Laboratories. It only holds the record of the patient's treatment with the Respondent.
Ms Dyer set out details of the searches that she undertook to try to locate information falling within the scope of the Applicant's access application. She stated: On about 10 September 2015, I carried out the following further searches: a. I did a search on PAS. That search showed that there was a two volume file in respect of Mr Turner held in the main filing system at Silverwater. I obtained those documents and copied them. b. I did a further search of JHEHS and located six electronic documents ... I provided those documents to Gurdev Singh for production to Mr Turner. … On 9 November 2015, I undertook a further search of Mr Turner's health record to satisfy myself that his entire paper health record had been produced, and to make additional searches in respect of the categories of documents identified specifically by Mr Turner at the NCAT conference in this matter on 2 November 2015. Dental records was one of the categories of document identified by Mr Turner at that conference. I subsequently identified five pages of dental records which it appears may not have been provided to Mr Turner on 29 September 2015. I provided a copy of these documents to Gurdev Singh and I understand they will be produced to Mr Turner. I am now satisfied that every health record held by Health Information and Record Service of Justice Health and Forensic Mental Health Network in relation to Mr Turner has been located and dealt with in the context of responding to his application dated 10 February 2015.

Dawn Carr

Ms Carr's statement dated 18 December 2015 is in evidence. Ms Carr is the Respondent's Manager, Administrative Services and is responsible for the management of the corporate records retained in a database called Hewlett Packard Records Manager. That system incorporates the records previously held in the TRIM System. Ms Carr stated that the Respondent's staff members still use the expression "TRIM" to refer to the records management system, and the term "Trimmed" is used to describe the processing of a document into the system.
In her statement Ms Carr provided details in regard to the approach taken within the Respondent when a document is "Trimmed".
Ms Carr also has responsibilities for the development of standard business processes and the education of staff in those processes. She also has oversight of the hard copy correspondence that is sent to the Respondent.
She stated that in addition to the TRIM system, she is aware of the following systems where documents may be held by the Respondent: a. The JHEHS system; b. The PAS system; c. The G: and H: Drives, which are located on the Justice Health server. Each Directorate within Justice Health has its own folder and its own security on those documents. Individuals save personal information to the H: Drive.
Ms Carr provided details in regard to the approach taken in searching TRIM for information concerning the Applicant. She stated: TRIM metadata is searchable by both key word and "wildcard". The "wildcard" function allows the user to search using part only of the search term and inserting an asterix at the end of that part. The search engine will then identify longer words that include that part of the word. For example if I use the search term "record*", the search will locate documents with the terms "record", "records" and "recording" in the metadata. On 16 November 2015, Gurdev Singh, Justice Health Legal Advisor asked me to undertake a search of the TRIM system for any documents concerning Donovan Turner. I commenced searching the TRIM system that morning. I used the search term "Donovan Turner". I then did a further search using the term "Turn*". The second search turned up a few records where the patient name was recorded as "Donavan Turner". I looked at those documents and satisfied myself that they in fact concerned Donovan Turner, and that the patient's given name had been misspelt in the Metadata. I made hard copies of the documents and handed those documents on to Gurdev Singh. I am satisfied on the basis of the searches that I undertook that I located all of the documents retained on the TRIM system concerning Donovan Turner.

Michael Sterry.

Mr Sterry's statement dated 27 April 2016 is in evidence. He is the Forensic Legal Advisor, Forensic Mental Health Service Development & Quality for the Respondent. He has held his position since May 2007.
Mr Sterry responded to the issue of whether the Respondent had disclosed the Applicant's information to the Legal Aid Commission. In his statement he provided the following details: I made the following inquiries with a view to ascertaining whether any unauthorised disclosure of Mr Turner's Justice Health records occurred: a) On or about 21 April 2016 I spoke to Janice Dyer, Manager, Health Information and Record Service, who was asked by Ms Buncombe to undertake a search of Mr Turner's paper health record. Ms Dyer informed me, and I do verily believe, that she reviewed Mr Turner's paper health record and did not find a letter from Legal Aid dated 13 February 2013 requesting a copy of Mr Turner's health record. b) On or about 21 April 2016, I spoke to Marcin Pasternak, Manager, Information Management, who was asked by Ms Buncombe to undertake a search of Mr Turner's paper health record. Mr Pasternak informed me, and I do verily believe, that the address and fax number on the letter from Legal Aid … are correct, and still current, though the service is now called "Health Information and Records Service" rather than "Joint Records ". Additionally, Mr Pasternak confirmed that he had checked Mr Turner's paper health record with the Medico-legal Co-ordinator, and could not find a copy of the letter dated 13 February 2013, or any request for a copy of Mr Turner's health records around February 2013. c) Following these conversations I requested Janice Dyer, Manager, Health Information and Record Service, to do a search to cover a wider period of time for the receipt or register by the Health Information and Record Service of [a letter from Legal Aid dated 13 February 2013]. Ms Dyer reported to me that she had conducted a search of all her records up to the present date and could not find any record of [a letter from Legal Aid dated 13 February 2013]. d) I also contacted Dawn Carr, Manager Administrative Services, about her search of TRIM records and she informed me that she had conducted a search of all TRIM records for the year 2013 and had not found [a letter from Legal Aid dated 13 February 2013]. e) Ms Janelle Buncombe arranged a full search of the G drive of Justice Health and did not find [a letter from Legal Aid dated 13 February 2013].
Mr Sterry further stated. I note that Mr Turner has produced a copy of a cheque addressed to Justice Health, with a cheque number "406078". When a cheque is received by HIRS it is recorded by HIRS and then couriered to Finance. Finance then record the cheque on a Register; bank the cheque and then do a reconciliation. If Justice Health had deposited a cheque with cheque number "406078", it would as a matter of the ordinary and usual practice be recorded in the cheque Register with Finance and also in the banking records held by Finance. On or about 21 April 2016, I spoke to Ing Yu, Finance Manager, Finance, who was asked by Ms Buncombe to undertake a search of Justice Health's financial records to determine whether a cheque with cheque number "406078" was ever deposited by Justice Health. I am informed by Mr Yu, and do verily believe, that there is no record of the cheque in the deposit register in finance. In fact Finance contacted Legal Aid to inquire about the cheque and were informed that according to their records the cheque was never banked and after 8 months was cancelled by Legal Aid. ... I am satisfied that I have spoken with the people able to conduct the relevant searches in respect of the matters raised by Mr Turner in his submissions dated 1 April 2016. I am also satisfied that Ms Dyer, Mr Pasternak, Mr Yu, and Ms Buncombe have conducted appropriate and accurate searches to identify whether the documents and cheque produced by Mr Turner with his submissions dated 1 April 2016 were received and/or processed by Justice Health. I am satisfied that Justice Health did not receive a request from Legal Aid for copies of Mr Turner's health record on or around 13 February 2013. I am also satisfied that Justice Health did not receive or bank a cheque with the identifying number "406078" in payment for producing a copy of Mr Turner's health record. As a result of the above enquiries l am further satisfied that Justice Health did not produce documents concerning Mr Turner to the Legal Aid Commission in or around early 2013 in pursuance of the documents which are annexed to Mr Turner's recent submission.

Submissions

Ms Doust provided both open and confidential submissions on behalf of the Respondent. The confidential material concerns the issue of whether or not the HCCC information has been correctly withheld.
The Applicant provided submissions and additional documentation in support of his argument that the Respondent has not provided all the information that it holds that falls within the scope of the access application.

The Applicant's material

The Applicant stated that he has been attempting to obtain the requested information over a period of five years and that the Respondent has repeatedly asserted that it did not hold the information that he is seeking. The assertion that the agency did not hold any of the requested information was clearly wrong, given that it has now located several volumes of material. This much is apparent from the evidence of the Respondent's witnesses that I have referred to above.
In addition to the information that he has requested, the Applicant is also seeking an explanation for the Respondent's failure to provide the requested information until September 2015.
He relies on his primary submissions dated 21 September 2015 and additional submissions filed in April and May 2016. As I have noted, he has provided the Tribunal with a considerable amount of material in the form of written submissions with annexures and data DVDs. He also made oral submissions.
The Applicant does not dispute that he was given additional information in September and December 2015, but he submits that: (i) the requested information was withheld by the Respondent for a number of years without justifiable reason being presented as to the reasons for such an overly prolonged delay in disclosure; (ii) no action has been taken by the Respondent against the relevant officer(s) responsible for serious misconduct; (iii) the documents disclosed, are not true documents, and are manufactured reproductions of the originals; and (iv) no action had been taken by the agency in regard to his request for biological/DNA, physical evidence, and fingerprint evidence that is held by the agency and has not been disclosed.
In regard to the present application, the Applicant's documentation concerns a number of incidents that he alleges occurred while he was imprisoned. It is clear that while in prison he kept detailed journal notes relating to various incidents. These included but are not limited to: - access applications made under the GIPA Act; - failure to release information requested in those access applications; - dry cell incidents at Wellington and Long Bay; - seizure and withholding of legal material; - false evidence and charges concerning mental illness and violence; - police attendance to take reports of incidents; - Crime Stoppers calls; - the agency's unsubstantiated claim that information was held in file locations outside those normally used; - the agency's claims that the Applicant had not provided enough information in support of his request despite the fact that he provided thousands of documents and that the provided information included precise details such as COPS event numbers, reference numbers, times, dates, locations, and names; - assault incidents and information concerning injuries that resulted from each assault; - concealing CCTV footage of assaults; - refusal to allow access to the medical block, despite numerous verbal and written requests; - ignored, lost, or destroyed written requests; - destruction of computer entries;
The Applicant submitted that the agency has failed to disclose records of police interviews taken from staff of the Respondent. He stated that the fact that those interviews occurred had been identified to him by visiting police officers who had attended to take reports. He also asserted that the Respondent has failed to disclose Risk Intervention Team documents. He points to his journal records and other material annexed to his submissions as support for the existence of the information that he alleges has been withheld.
The Applicant disputes the Respondent's argument in relation to the withheld HCCC records. He submitted that the Tribunal should consider that position to be neither fair nor just. He stated that the HCCC complaints extended from 2010 - 2015 and concerned:

the Respondent's failure to disclose information;
repeated assaults causing serious injuries that were not treated as required;
the refusal of allow him to access the medical centre or to obtain treatment for an inner ear infection;
the refusal of dental care and the Respondent's failure to disclose dentist records and refused dental care for three years from 2012 - 2015.

He contends that the HCCC records have been withheld because of the seriousness of their offences that were the subject of his complaints to the HCCC. He alleged that officers of the Respondent were aware of the requests he had made to the ICAC and that they had nevertheless allowed human rights abuses to continue.
The Applicant submits that the agency is in fact continuing to withhold information which he contends should be in existence but which remains to be located. He stated that he made journal records showing approximately three months of repeated requests to the nurse, medical or doctor in respect of a severe inner ear infection and noting that numerous HCCC complaints were also made. However, he has provided a copy of a briefing note to the Minister for Health which is dated 27 August 2014 which states "there is no documentation in Mr Turner's medical file to indicate he spoke directly with justice health & forensic mental health network (JH&FMN) nursing staff in January 2014 " and "there is no documentation in his medical file to indicate a treatment plan..."
The Applicant submits that information concerning that issue should be in existence and remains to be located.

Alleged offences by the agency

The Applicant alleged that an officer of the agency failed to exercise in good faith a function conferred on them by or under the GIPA Act. This allegation concerns both the present and previous access applications. He referred to over 40 prior applications that he contends were ignored by the agency in the period 2010 - 2014. He provided documentation to support his assertions. He alleges that the agency had deliberately withheld or concealed the requested information for over 5 years.
The Applicant alleged that the agency acted improperly when it stated, in writing, that it did not hold injury records or psychiatric records in relation to him. He submitted that the Tribunal must take action under section 112 of the GIPA Act in consideration of all prior improper actions as well as those relating to these proceedings.
In its decision dated 19 March 2015 the Respondent stated: "Upon preliminary assessment, I can confirm that we do not possess any of the following information • Psychiatric reports from Jan 2009 to present date, you may wish to submit a separate application to Corrective Services NSW (CSNSW) to obtain a copy of it • Investigation report from the Forensic Services Group as of 30 May 2008, and • Materials allocated to NSW Police and Hurstville Crime Sutherland, you may wish to submit a separate application to NSW Police to obtain a copy of it"
The Applicant submitted that the Tribunal must take into consideration the fact that at the time he was given that assessment the Respondent had three volumes of material in its possession. It withheld that material even though the Applicant had identified Court of Criminal Appeal proceedings as a point of issue when seeking immediate disclosure. He further submitted that the Tribunal would consider the fact that he lost his appeal due to the actions of the Respondent, and other agencies, in their unwillingness to disclose information that was in their possession and which they repeatedly denied as ever held.
The Applicant also alleged that the Respondent acted improperly in regard to the storage of his information. He submitted that the mere fact that files containing his information were identified as being located on TRIM, G and H drives, the HP System and PAS is evidence of data tampering and impairment. He also submitted that if the type of information held is taken into consideration, the evidence of misspelt names suggests distinctly uncharacteristic practice. He submitted that the deliberate misspelling of his name would conceal evidence necessary for ICAC and additional overseeing powers, including the Court of Criminal Appeal.
He further submitted that the Tribunal should also consider the Respondent's continued improper conduct in wilfully concealing information that it holds but which has not yet been disclosed.
The Applicant also referred to Mr Singh's evidence that he had become involved as a GIPA officer handling the application. He contends that this suggests a contravention of the requirements applicable to the conduct of an internal review. He submitted that Mr Pasternak had been responsible for the handling of that internal review decision and that Mr Pasternak and Mr Singh are lower rank GIPA officers. Section 84 (2) of the GIPA Act provides that an internal review is not to be done by the person who made the original decision and is not to be done by a person who is less senior than the person who made the original decision.
The Applicant also alleged breaches of sections 116 and 120 of the GIPA Act. Section 116 provides that an officer of an agency must not make a reviewable decision in relation to an access application that the officer knows to be contrary to the requirements of the GIPA Act. Section 120 provides that a person who destroys, conceals or alters any record of government information for the purpose of preventing the disclosure of the information under the GIPA Act is guilty of an offence.
The Applicant submits that the Respondent had full possession of his records, including the information that he had requested, and it withheld the material despite numerous complaints to the Respondent's staff, welfare officers, warden staff, the NSW Premier and other individuals. He contends that by withholding psychiatric reports over a number of years, the Respondent affected his parole release and a Muldrock resentence application. He further contends that by withholding injury records the Respondent affected an ICAC investigation. The ICAC had stated that no action would be taken because the Applicant had been unable to put forward probative evidence. He contends that the Respondent had wilfully suppressed and concealed the evidence that was necessary for the ICAC investigation and for Court of Criminal Appeal purposes.
The Applicant also submitted that his case had been severely prejudiced firstly, by the Respondent's failure to call individuals who he regarded as essential witnesses and, secondly, by its failure to meet timetable requirements for the provision of information.
The Applicant also submits that the Respondent failed to comply with the Guidelines on the Use and Disclosure of Inmate/Patient Medical Records and Other Health Information that were established pursuant to clause 297 of the Crimes (Administration of Sentences) Regulation 2008. Those guidelines set out the Principles for disclosure of personal health information to an inmate/patient. Clause 6 states that, subject to various specified exceptions: Inmates/patients shall have a right to access their own personal health information held by Justice Health & Forensic Mental Health Network"
The Applicant submits that the Respondent contravened these guidelines in regard to the refusal to disclosure personal information which he says is rightfully owed to him. He also alleges a contravention of Health Privacy Principle 7 ("HPP 7") under the Health Records and Information Privacy Act 2002. HPP 7 Provides: Access to personal health information Individuals must be allowed to access the personal health information an organisation holds about them. This must be done without excessive delay or expense.

Discussion

In these reasons I have referred to specific evidence and submissions relied on by each of the parties. However I do not refer to all of the parties' material. I have had regard to all of the evidence and submissions, including material that I do not refer to in these reasons.
As noted above, the Respondent initially determined the access application on 19 March 2015. The reviewer found that the application was not valid on the basis that it did not include such information as was reasonably necessary to enable the application to be determined. The Applicant sought a review of that decision by the Office of the Information and Privacy Commission, which recommended that the Respondent reconsider its decision. Following an internal review of the application, on 26 May 2015 Mr Pasternak determined to release documents to the Applicant.
Further information falling within the scope of the application was subsequently identified and produced to the Applicant.
The Applicant has asserted that the Respondent's responses in relation to his earlier requests have had significant consequences for him. One example of those consequences that he pointed to is that he was refused the opportunity to be paroled on the basis that he had been unable to show that he had attended a required psychological assessment even though all his psychiatric reports were favourable. He needed a record from the Respondent to show that he had in fact attended and undertaken the assessment. He asserts that the Respondent had responded that it did not hold the record that he was seeking and as a result his application for parole was refused. As a result of that refusal he had to stay in prison for an extra year. The Respondent subsequently provided the record that showed that he had in fact attended and undertaken the assessment but gave no explanation for why it had not been located at the time he had requested it.
The Respondent has submitted that the Tribunal is only able to consider the application that is before it and is unable to revisit the issues that the Applicant has raised in relation to his previous applications for information held by the Respondent. I agree with that submission.
In my view the Tribunal's jurisdiction is limited to the access application dated 10 February 2015. For this reason, I cannot address many of the issues that the Applicant has raised. This is the case regardless of whether or not there is merit to the Applicant's contentions.
The Applicant contends that the Respondent should hold other information that has not been located or provided to him. He explained why he believed that the information should exist and he has filed material to support his contention.
The question arises as to whether the Respondent has located all of the information falling within the scope of the access application. As I have indicated above, in order to answer that question it is necessary to consider the steps taken to locate the information and whether the Respondent has satisfied its obligations under section 53 of the GIPA Act.
I have set out the evidence of the searches that the Respondent undertook in some details. I must consider whether those searches were adequate.
The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
The decision in Shepherd has been followed in a number of decisions of this Tribunal in matters under the now repealed Freedom of Information Act 1989 ("the FOI Act") and under the GIPA Act. I considered this in Mino v Legal Aid NSW [2015] NSWCATAD 245 at paragraphs [24] - [35].
In the context of the GIPA Act the Tribunal must form a view as to whether or not there may be some further information that falls within the scope of the access application and, if so, whether the efforts that the Respondent made to find the information were sufficient.
The first question therefore, is whether there are reasonable grounds for believing that there are additional documents. In this matter the Applicant has raised concerns about the adequacy of the searches and he has also provided considerable material which suggests that there may be some further records relevant to the access application. However, he has not suggested other searches that might have revealed the information.
I am satisfied from the material that is before me that the Applicant probably spoke to a member of the Respondent's staff about his ear condition in January 2014. Ms Dyer's evidence is that where a Justice Health doctor, nurse, dentist, optometrist or allied health practitioner has seen a patient, those practitioners are required to make a note of their consultation in the Progress Notes.
If the Applicant was seen by one of those staff member, a record would exist if the proper procedure was followed. In that case, there are reasonable grounds to believe that the information exists and has not been located.
However, notwithstanding Ms Dyer's evidence that a patient's Progress Notes should include any observations made by staff members about any injuries or condition reported to be suffered by a patient, it appears that the outlined procedure was not always followed.
The material that the Applicant provided regarding his request to see a doctor for the ear condition includes a letter dated 12 August 2014 from the HCCC to the Applicant. That letter states: In the response from Justice Health the Commission was advised that there was no documentation on your medical file to indicate that you had spoken to a nurse in January 2014, regarding your ear pain. It was acknowledged, however that your patient self-referral form was received on 23 January and an appointment was scheduled for you. Justice Health stated that the Nursing unit Manager at Parklea Correctional Centre was not able to explain why you were not assessed at that time. There was also no explanation as to why a treatment plan was not documented on your medical record following your appointment with a Correctional Centre nurse on 13 March 2014. … Whilst the Commission acknowledges the distress and frustration you experienced as a result of delayed treatment, we are satisfied that the appropriate steps are being taken by Justice Health staff to prevent this happening again. The Commission also acknowledges that the service you received from nursing staff at the Parklea Correctional Centre was less than ideal as was the lack of documentation on your medical file …
While I am satisfied that further records should have been made in regard to the Applicant's ear condition, on the basis of the information that I have been given it seems unlikely that those further records were ever created. There is no basis on which I could conclude that records were created and then destroyed. If the Applicant did not receive treatment for several months this is a cause for concern. If he was seen and no records were kept, then that is also a cause for concern. However, neither of those issues are within the Tribunal's jurisdiction for consideration in this matter.
I have considered the evidence in regard to the searches that were undertaken. There can be no reasonable suggestion that the initial searches were adequate. The fact that three volumes of material were eventually located speaks for itself in that regard.
What is not clear is how the initial position could have been reached if any search was undertaken. As Ms Dyer's evidence shows, a search using a patient's name, MIN or MRN number will identify records concerning that patient. The Respondent had the Applicant's name and MIN Number yet failed to locate the volumes of material that it held in relation to him. No adequate explanation has been provided for that failure. However the failure is explained, it is clear that the initial searches were inadequate.
Nevertheless, I am now satisfied that the totality of the search efforts have been reasonable in all the circumstances of this case. In my view it is unlikely that further searches would locate further information that falls within the scope of the access application.

Disclosure of the Applicant's information to the Legal Aid Commission

The Applicant contends that the Respondent disclosed his health information to the Legal Aid Commission. The question of whether or not health information was disclosed does not appear to be relevant to this application other than to the extent that information relating to that issue was retained by the Respondent and therefore falls within the scope of the access application.
As noted above, Mr Sterry provided a statement that details his attempt to explain what had happened in regard to the issue and concluded that the Respondent had not received a request from Legal Aid for copies of the Applicant's health record on or around 13 February 2013 nor did it receive or bank a cheque in payment for producing a copy of the Applicant's health record.
I accept that evidence. That being the case, I accept that the Respondent does not hold information that it would be expected to hold if it had received that request for copies of the Applicant's health record on or around 13 February 2013.

The HCCC information

As noted above, Ms Doust provided both open and confidential submissions in regard to the issue of whether or not the HCCC information has been correctly withheld. The withheld documents have been produced to the Tribunal on a confidential basis.
Clause 6 of Schedule 1 to the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information, to the disclosure of which, the agency has consented.
I am satisfied that the HCCC information relates to the complaint handling, investigative, complaints resolution and reporting functions of the HCCC. In these circumstances, the HCCC information is "Excluded information" for the purposes of the GIPA Act. I am also satisfied that the HCCC has not consented to the disclosure of that information.
That being the case, it is conclusively presumed that there is an overriding public interest against disclosure of that information and accordingly the Tribunal has no discretion to release the information.
This remains the case regardless of whether or not there is any substance to the Applicant's contentions regarding the Respondent's motivation for withholding the HCCC records.

Conclusion

As I have indicated above, I have significant concerns about the manner in which the Respondent dealt with the access application and in regard to its general approach to the matter prior to Ms Doust's involvement. Nevertheless, it is my view that the ultimate outcome of this matter is that the Applicant has been provided with all of the information that falls within the scope of the access application that he is entitled to receive. That was far from the case in the initial determination and only became so after several further attempts to locate relevant information.
Having formed that view, it follows that the correct and preferable decision is to affirm that ultimate determination.

Further issues

The Applicant has expressed concern and raised numerous issues in relation to the Respondent's conduct in processing his various access applications. He requested that the Tribunal take action pursuant to section 112 of the GIPA Act. I propose to deal with that issue separately to this decision.

Orders 1. The decision under review is varied to incorporate the further decisions taken by the Respondent in September 2015 and December 2015. 2. The decision as varied 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: 21 November 2016

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Judgment (18 paragraphs)

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