Recent Cases: Victoria

WZF v Abramson (Human Rights) [2022] VCAT 145

WZF (“complainant”) was a patient of psychologist, Dr Abramson (“respondent”).  The majority of the treatment the respondent provided to the complainant was funded by the Transport Accident Commission (“TAC”).  The complainant sought a complete copy of her clinical records held by the respondent under the HR Act.  Specifically:

1. all clinical records made about the complainant, both handwritten and typed which included tests;
2. all receipts and records of bills to the complainant or TAC for psychology and business seminars; 
3. all notes or records made in relation to billing by the complainant or TAC; and 
4. all records and/or contact made by the respondent to the complainant or about the complainant to any person including a copy of all e-mails and texts. 

The respondent declined (by e-mail) to provide the clinical records directly to the complainant as she was concerned that the provision of the health information in the records would pose a serious threat to the life or health of the complainant.

In June 2019, the complainant made a complaint to the Health Complaints Commissioner (“Commissioner”).  In September 2019, the complainant was informed that the Commissioner had declined to further entertain the complaint as the Commissioner did not consider it could be successfully conciliated and it was inappropriate for the making of a ruling.

On the request of the complainant, the Commissioner referred the complaint to the Victorian Civil and Administrative Tribunal (“Tribunal”).

In accordance with her obligations, the respondent provided a complete copy of the clinical records to the TAC on the request of the TAC.  In August 2019, the complainant sought access to a copy of the clinical records from TAC under the Freedom of Information Act 1982 (Vic). 

The respondent accepted the TAC’s decision to release the clinical records to the complainant based upon her understanding that TAC had consulted with the complainant’s treating psychologist and an independent psychiatrist.  In March and May 2020, the complainant received a complete copy of the clinical records from TAC. 

It was then the position of the respondent that she had provided all the health information to the complainant that she was required to.  However, the complainant continued to dispute this.

The first issue for the Tribunal was whether the complainant had been given access to all the health information the respondent had about her.  The second issue for the Tribunal was whether prior to the complainant receiving a complete copy of the clinic records from TAC, whether the respondent breached s 25 and HPP 6 of the HR Act in declining to provide the clinic records to the complainant.

Rights of Access: s 25

Under s 25 of the HR Act, an individual has a right of access to their health information held by an organisation. 

Access: HPP 6

First issue - whether all health information was provided to complainant

HPP 6.1 says if an organisation holds health information about an individual, it must provide the individual with access to the information on request by the individual unless, for example, providing access would be unlawful (HPP 6.1(f) or denying access is required or authorised by or under law (HPP 6.1(g)).

In relation to the psychometric tests, the Tribunal could not find any overriding obligation under the HR Act, in the circumstances, on the respondent to provide access to the psychometric tests.  The Tribunal accepted the respondent’s submissions that the test materials are only made available to registered psychologists and are made available to such psychologists on contractual terms that require the psychologist to not distribute the test manuals and/or answers booklets to clients or members of the public.  Additionally, that the rationale for maintaining strict confidentiality of the test materials is to protect the integrity of psychometric tests as the reliability and meaningfulness of the tests would be severely diminished if the test materials were available to the public and the tests could become open to misuse. 

The Tribunal also went on to find that the wording of the exemptions in HPP 6.1(f) and (g) clearly contemplates that a person’s right to access their health information is not absolute.

The Tribunal was satisfied that the contractual and ethical obligations upon the respondent made it appropriate under HPP 6.1(f) and (g) for her not to provide access to the psychometric tests to the complainant, and that the complainant was given access to all the other health information the respondent had about her.

Second issue - alleged breach of s 25 and HPP 6 of the HR Act 

HPP 6.1 says if an organisation holds health information about an individual, it must provide the individual with access to the information on request by the individual unless, for example, providing access would pose a serious threat to the life or health of the individual or any other person (see s 26 of the HR Act) (HPP 6.1(a)). 

As outlined above, the respondent declined (by e-mail) to provide the clinical records directly to the complainant as she was concerned that the provision of the health information in the records would pose a serious threat to the life or health of the complainant. 

The Tribunal acknowledged that the first e-mail sent by the respondent to the complainant was not well expressed but that the respondent stated that as she had ceased treating the complainant, provision of the health records would not be of therapeutic benefit to the complainant.  Although the second e-mail sent by the respondent to the complainant did not specifically refer to ss 26 or 37 (offer to discuss health information) of the HR Act, the Tribunal was satisfied from the wording of the e-mail and from the evidence given by the respondent that the respondent did rely on matters which are the subject of those sections. 

The Tribunal therefore found that the respondent’s e-mails to the complainant did not breach the HR Act. 

HELD

In relation to the first issue, the Tribunal was satisfied on the evidence available that the complainant had been given access to all health information with the exception of psychometric tests that the respondent had about her. In regard to the psychometric tests, the Tribunal accepted that the contractual (with the distributor of psychometric tests materials, including test manuals and answer booklets) and ethical obligations upon the respondent made it appropriate under the HPP 6.1(f) and (g) for her not to provide access to the complainant. 

In relation to the second issue, the Tribunal was not satisfied that there had been a breach by the respondent of the HR Act generally nor specifically in relation to section 25 and HPP 6 of the HR Act.

The Tribunal found the complaint could not be proven and dismissed the complaint.

NKY v Department of Education and Training [2022] VCAT 302

NKY (“applicant”) made a request to the Department of Education and Training (“Department”) for access to documents regarding an incident involving his son at his primary school.  The department refused access to the documents under ss 30(1), 33(1) and 35(1)(b) of the FOI Act. 

The applicant sought review of the department’s decision at the Office of the Victorian Information Commissioner (“Commissioner”).  The Commissioner reached the same conclusion as the department. 

The department contended the remaining information in the ‘Incident and Follow Up  Notes’  was exempt under ss 30(1), 33(1) and 35(1)(b) of the FOI Act.

Documents containing material obtained in confidence: s 35(1)(b)

The first question for the Tribunal was whether the material was obtained in confidence.  One of the questions raised was whether the student(s) involved could understand the concept of providing information in confidence. 

The Tribunal was satisfied that by the teacher referring to themselves as a ‘trusted adult’, they were implying that an appropriate level of confidentiality would be maintained, consistent with the department’s privacy policies.

Recognising that s 35(1)(b) requires the ‘public interest’ to be considered through the prism of the impact of disclosure on the ability of the agency to obtain similar information in the future, the Tribunal considered the broader public interest relating to the proper functioning of the school system may trump the private interest of particular parents in this regard. 

The Tribunal accepted the department’s evidence that the investigation of incidents at a school are inherently sensitive, particularly when it involves children of primary school age, and disclosure would impair or lessen the likelihood of students providing information about similar school incidents in the future. 

Document affecting personal privacy: s 33(1)

The department submitted that apart from the information regarding departmental staff and teachers that was no longer sought by the applicant, the documents disclose ‘statements made by other students and information that could identify third parties’. 

The Tribunal found that it was quite clear that the student(s) who provided information to the author of the notes could be identified at least by the applicant and his wife, and (reasonably likely) by others with some knowledge of the incident by reference to the description of events provided by the student(s).  Similarly, there was reference to at least one parent who could be identified by reference to their child.  The Tribunal was satisfied that such information was personal affairs information for the purposes of s 33(1) of the FOI Act. 

In deciding that any disclosure of the confidential information relating to other student(s) or their parent(s) would be unreasonable, the Tribunal took into account the: 

• nature of the information - that information that primarily relates to young children is inherently sensitive and maintenance of their welfare is an important consideration, even if it not always paramount;
• circumstances in which the information was obtained - it was obtained on the basis of an implied understanding of confidentiality on the part of the student(s) or their parent(s), and that the use and disclosure of the information provided would be limited in accordance with the department’s privacy policies; 
• potential for dissemination - whilst the applicant suggested that the information was sought only for medical purposes, there is no limitation on the dissemination of the information once released, and the absence of sufficient evidence to support the need of the information to address the medical needs of the applicant’s son pointed away from disclosure;
• likely objections to release - the Tribunal was satisfied the student(s) and their parent(s) would not wish to have the information disclosed without their consent, consistent with the department’s privacy policies, concluding that whether deliberately or inadvertently, if the information was revealed to those who remain at the school, it may result in adverse impacts for the student(s) involved; and 
• public interest - whilst noting that it is finely balanced, that the public interest in maintaining the ability of schools to obtain the co-operation of students (and their parents) for investigations of such incidents outweighs any general right of parents to know everything about such incidents, particularly, in this case, in the absence of clear medical evidence to indicate that disclosure would assist the treatment of the applicant’s soon.

Internal working documents: s 30(1) 

Given the Tribunal found the majority of the information was exempt from disclosure under ss 35(1)(b) and/or 33(1) of the FOI Act, it was only necessary to consider the application of s 30(1) of the FOI Act in relation to the two remaining passages.

The information in the first passage related to what the author told students they should report to a teacher on yard duty or their classroom teacher if they saw an incident resulting in injury to a student.  The information in the second sentence of the second passage concerned the author’s explanation as to the purpose of a restorative conversation.

Whilst accepting that the notes were prepared by the author for provision to the principal of the school as part of the principal’s deliberative process, and do not take the form of a final incident report, the Tribunal was not satisfied that either passage disclosed matter in the nature of opinion, advice or recommendation or consultation or deliberation that had taken place between officers, or that disclosure of those passages would be contrary to the public interest. 

HELD

The Tribunal was satisfied the remaining information (with the exception of two passages that the Tribunal did not accept related to another student or a student’s parent) was exempt from disclosure under ss 33(1) and/or 35(1)(b) of the FOI Act. 

The Tribunal also did not accept that s 30(1) of the FOI Act applied to the two passages.  The Tribunal varied the decision of the Commissioner to provide for the release of the two passages

Note: FOI Solutions acted for the Department in this case.