Background Facts

On 3 March 2015, the applicant made a complaint to the Medical Council of New South Wales (Council). Ultimately, the Council's performance committee determined no further action was warranted. The Applicant subsequently made two applications seeking further information and documents in relation to the Council's reasoning for this decision. The application was refused, though some documents were released with redactions.

The applicant then applied for external review by the Information and Privacy Commission (Commission) on 3 October 2017. The Commission determined that the decision had been justified. The applicant sought review of this decision in the New South Wales Civil and Administrative Tribunal – Administrative and Equal Opportunity Division.

The primary issues for consideration were:

  • whether the Council failed to state:
    • a material finding of fact;
    • the source of information which findings were based; and
    • the general nature and format of the records held, as required under the Government Information (Public Access) Act 2009 (GIPA Act) s 61(b), (c).
  • whether the non-disclosed information was excluded from disclosure under clause 1 of Sch 4 of the GIPA Act; and
  • whether s 99A of the Health Care Complaints Act 1993 (HCC Act) permits disclosure if consent is given by the person to whom the information relates.

Consideration

The Tribunal considered the following aspects in affirming the decision under review:

  • in relation to submission 1, Tribunal do not have jurisdiction to deal with a deficiency in a notice of determination;
  • in relation to submission 2, the effect of clause 1 of Sch 4 and clause 2 of Sch 2 is that information that relates to 'complaint handling, investigative, complained resolution and reporting functions of the Health Care Complaints Commission' (HCCC) need not be disclosed. The term 'relates to' is interpreted broadly. The non-disclosed documents are made up of:
    • internal medical advice and medical records provided for the HCCC's Pre-Assessment Committee;
    • correspondence between the Council and relevant practitioners regarding the applicant's complaint;
    • minutes taken at the Medical Council Performance Committee meeting, wherein the applicant's complaints were discussed;
    • a file note concerning whether documents were to be provided to relevant practitioners in respect of the complaint; and
    • a Review of Assessment Decision in relation to the complaint.
  • in relation to submission 3, the Tribunal accepted that s 99A permits disclosure where the party to whom the information relates give their consent. However, it noted that the mechanisms for disclosure of information under s 99A of the HCC Act falls within the HCCC's discretion and is not reviewable by Tribunal.

Order

The Tribunal affirmed the decision not to disclose further information and documents in relation to the Council's reasoning for its decision. The Tribunal reasoned that it did not have jurisdiction to deal with deficiencies in a notice of determination, or with the HCCC's decision not to disclose further information pursuant to s 99A of the HCC Act. Further, the nature of the documents not disclosed related to 'complaint handling, investigative, complaints resolution and reporting functions of the HCCC'. As such, the HCCC was not required to disclose these document pursuant to clause 1 of Sch 4 and clause 2 of Sch 2.