Information Access Case Note: Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213

Summary

The Tribunal found that a conclusive presumption of an overriding public interest against disclosure applied to information held by the Respondent following a referral from the Health Care Complaints Commission. The Tribunal found that information relating to or obtained in exercise of functions of Health Care Complaints Commission was subject to a conclusive presumption that there is an overriding public interest against disclosure.

Read the full decision here Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213

What you need to know

The Applicant sought access to information held by the Medical Council of New South Wales (the Respondent), following a referral of a complaint from the Health Care Complaints Commission (HCCC). The Respondent decided not to provide access to the information claiming a conclusive presumption that there is an overriding public interest against disclosure.

The Tribunal affirmed the Respondent’s decision.

What HCCC information is excluded information?

The Tribunal considered whether information held by the Respondent following a referral of a complaint from the HCCC is excluded information under clause 2 of Schedule 2 to the GIPA Act. The Tribunal noted that the combined effect of clause 1 of Schedule 4 to the GIPA Act and clause 2 of Schedule 2 is that information that relates to any complaint handling, investigative, complaints resolution and reporting functions of the HCCC is excluded information (at [43] and [62]).

What is the interaction between the Health Care Complaints Act 1993 and the GIPA Act?

The Tribunal considered section 99A of the Health Care Complaints Act 1993 (HCC Act), which provides for an offence by a person for improper disclosure of information obtained in exercising a function under this Act, unless one or more of the exceptions in paragraph 99A(1)(a) to (d) applies (at [70]).

The Tribunal considered the interaction between this provision of the HCC Act and the overriding secrecy laws under clause 1 of Schedule 1 to the GIPA Act. This provision provides that for the legislation prescribed, including the HCC Act, there is a conclusive presumption that there is an overriding public interest against disclosure (at [70]).

The Tribunal made a distinction between the information created by the HCCC or the Medical Council, and the information obtained by it. Further, that the documents obtained by the HCCC or Medical Council in exercising a function under the HCC Act and those which were created by those bodies could be separated (at [70]).

Legislative background

Conclusive presumption that there is an overriding public interest against disclosure:

• clause 2 of Schedule 2
• clause 1 of Schedule 1

Factual background

The Applicant sought access to information and documents about a complaint he made to the Respondent in respect of information considered by the Respondent’s Performance Committee.

The Applicant sought a review by the Information Commissioner, who made no recommendations to the Respondent.

Tribunal findings

Following a review of the withheld information, the Tribunal found (at [62]) that there were sufficient grounds for finding that the information following a referral of a complaint from the HCCC is “excluded information” and a conclusive presumption that there is an overriding public interest against its disclosure as provided in clause 2 of Schedule 2 applies to the information.  

The Tribunal noted that given a finding was made on clause 2 of Schedule 2 to the GIPA Act, it was unnecessary to determine the remaining issues. However, the remaining issues were comment on because it may be beneficial.

The Tribunal found at [70] that the documents which were created by the HCCC or Medical Council contain information which was obtained by either body in exercising a function under the HCC Act, and accordingly they are also subject to a conclusive presumption that there is an overriding public interest against disclosure because of the combined effect of clause 1 of Schedule 1 of the GIPA Act and section 99A of the HCC Act.

Tribunal outcome

The Tribunal affirmed the Respondent’s decision.