Recent Cases: Victoria
Badhan v Boronia Mall Clinic [2021] VCAT 681
Suneeta Badhan (“complainant”) alleged that the Boronia Mall Clinic (“respondent”) had not given her access to all the health records that it held; and in failing to do so it had breached the Health Records Act 2001 and Health Privacy Principle ("HPP") 6.
The complainant was not satisfied that a complete set of her health records had been provided to her. She was certain that there should be more documents. She believed or expected that it would be reasonable that the respondent would have kept records of the many specialist doctors that she had consulted over the years.
The respondent argued that it had provided the complainant with all the medical records that it had in its possession; some of which was requested from three separate clinics. It believed that it had done everything reasonably possible to provide the complainant with her medical records.
The Health Complaints Commissioner declined the complaint as the Commissioner understood that the respondent had provided the complete set of records that it held to the complainant. The complaint was referred to the Victorian Civil and Administrative Tribunal (“Tribunal”).
Access: HPP 6
The Tribunal acknowledged that it is a burden that the complainant had to separately seek out all the specialists’ reports that she did not have; it was understandable that the complainant wanted to have all her health information collated in one place. However, there was no breach of HPP 6. The Tribunal was satisfied that the respondent had given the complainant access to all the health information it held about her.
HELD:
The Tribunal was satisfied that the respondent had given the complainant all the health information that they had about her. The proceeding was dismissed.
Bailey v Victoria Police [2021] VCAT 386
Michael Bailey (“applicant”) originally represented his father-in-law, Victor Brooks, who had sought to access documents from Victoria Police after being found guilty of drug offences. On review by the Victorian Civil and Administrative Tribunal (“Tribunal”), the Tribunal affirmed the Victoria Police decision to refuse access to an affidavit supporting an application for search warrants to gather evidence in relation to the drug offence.
Following the death of Brooks, the applicant made a new FOI request to access documents about the offence. Victoria Police in its decision indicated that some of the documents had already been provided to the applicant and others were no longer or had never been in existence. The documents identified by Victoria Police included an affidavit previously sought and other documents, with the majority of information in them the same as the affidavit about which the Tribunal had previously made its decision.
The Victoria Police decision to refuse access was reviewed by the Information Commissioner, who did not make a decision within the statutory timeframes. Therefore, a decision refusing access was taken to be made by the Commissioner due to delay.
The applicant sought review by the Tribunal.
Victoria Police applied to have the proceeding dismissed under s 75 on the basis that:
(a) s 50(6) of the FOI Act applied and the Tribunal should not review a decision about a document or information it had previously made a decision about;
(b) in relation to the remainder, s 25 applies such that it would not be practicable to provide access to an edited document with information deleted, therefore it would be an abuse of process to allow the application to continue; as it would enable defeated applicants to enlist the services of others to make the same request all over again.
The applicant asserted that the reasoning behind his application was to expose improper practices of Victoria Police toward the public. However, he did not specifically refer to particular practices.
Refuse to review a decision: s 50(6)
The Tribunal exercised its discretionary power under s 50(6) and refused to conduct a further review into the decision to refuse access to documents sought by the applicant. The Tribunal found that the information contained in the affidavit the subject of the earlier proceeding was also contained in other documents sought by the applicant in this matter.
There was no sufficient basis to re-visit the public interest consideration. The Tribunal exercised its jurisdiction to not investigate any government malpractice, which the applicant sought through the documents requested. It would be an abuse of process to proceed with the review as exemption had already previously been determined in relation to the affidavit.
Release of edited copies of a document: s 25
It would not be reasonably practicable to release the documents after editing; the remaining information did not respond to the FOI request. It was contended that after removing the information found in the affidavit, the result would be a meaningless document. The remaining material is insignificant that the redacted document produced would indeed be devoid of context and meaning.
HELD:
Where the Tribunal had previously made a decision on the documents or parts of documents, it dismissed the application for review, otherwise affirming the decision.