IN THE SUPREME COURT ) Heard: 7 September 1994
)
OF WESTERN AUSTRALIA ) Delivered: 9 November 1994

CORAM: MR COMMISSIONER HEENAN QC

Appeal No 1093 of 1994

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1992

and

IN THE MATTER OF INFORMATION COMMISSIONER'S DECISION
D00894 DATED 7 JUNE 1994

B E T W E E N :

DAVID CLEMENTS
Appellant

and

MS B KEIGHLEY-GERARDY
INFORMATION COMMISSIONER
Respondent

Catchwords

Freedom of Information - appeal from decision of Information Commissioner - no
point of principle - turns on own facts

Freedom of Information Act 1992 (WA)

(Page 2)
Mr Clements appeared in person.

Mr K de Kerloy (instructed by Messrs Freehill Hollingdale & Page)
appeared for the respondent.

(Page 3)
MR COMMISSIONER HEENAN QC

This is an appeal pursuant to s 85 of the Freedom of Information Act

1992 (WA) against a decision of the Information Commissioner dated 9 June 1994

(Decision D00894) granting restricted access to the appellant to certain case

notes, memoranda and reports relating to his admissions to Heathcote Hospital

in 1989 and 1992. That decision by the Information Commissioner has varied an

earlier decision of the agency, Heathcote Hospital, to give more restricted

access to the information sought and exempting certain documents or parts of

documents from the material disclosed. The decision of the Information

Commissioner gave to the appellant greater access to the material which he is

seeking but still restricted access to parts of the information as exempt or

confidential. Being dissatisfied with his inability to obtain complete access

to all the materials sought the appellant has instituted this appeal.

By s 86 the agency to which the original access application was made, or

to which such application has been transferred or partly transferred, is a

party to the appeal even if it is neither the appellant nor the respondent

(see s 9 and the Glossary). The original request for access to documents was

made by the appellant by a letter of 2 November 1993 to Heathcote Hospital

and, thereafter, there was a course of correspondence between the appellant

and the Health Department of Western Australia (Mental Health Policy Branch),

which, over a lengthy period, led to correspondence between the appellant and

the Commissioner of Health or his senior officers. At various stages during

the long course of dealings with this request, and also during subsequent

reviews, the request for access, or part of the request dealing with emerging

questions, was transferred from the Health Department to Heathcote Hospital.

At the hearing of this appeal counsel appeared for Heathcote Hospital which,

in view

(Page 4)
of the provisions of s 86 must be regarded as a party to the appeal.

The appellant objected to Heathcote Hospital being heard on the appeal but, in

view of these provisions, I ruled that the Hospital had a right to be heard.

On 5 August 1994, the only named respondent, the Information Commissioner,

filed a Notice of Intention to abide by the decision of the Court and was not

represented on the hearing of the appeal.

The appellant personally formulated his original request for access to

information thought to be held by the hospital and, himself, conducted all the

correspondence and communications with the Health Department, with Heathcote

Hospital and with the Information Commissioner. He has prepared all the

documents for this appeal and appeared at the hearing of the appeal in person.

Not having any legal qualifications Mr Clements' Notice and Grounds of Appeal

are, at first, somewhat difficult to follow although they have, in the end,

proved adequate for the disposition of the appeal. Not all of the grounds of

appeal advanced by Mr Clements raise questions of law and it is only those

that do that can be considered by this Court (s 85(1)). I consider the only

permissible grounds of appeal raised by the appellant in his Notice of

1 August 1994 are:-

(4) The Information Commissioner erred in law by editing material in

documents which are not permitted to be exempt (Decision paras 23 and

26) (the Act, Schedule 1, Cl 3).

(5) The Information Commissioner erred in law by not ensuring that

notification of decision made on documents under application for access

was conveyed to the applicant by an agency (Decision paras 19, 20 and

29-32) (the Act, ss 13(1)(b) and 30(c)).

(6) The Information Commissioner erred in law by not allowing the appellant

being a party to the complaint an opportunity to make

(Page 5)
submissions for consideration before deciding on the issues (Decision

paras 29-32) (the Act, s 70(3)).

I am conscious that the appellant has asserted, by other grounds of

appeal, that the Commissioner erred in law but the formulation of the alleged

error in Grounds (1) and (2) demonstrates that no issue of law could be

involved, whereas the formulation of the alleged error in Ground (3) (failure

to take into account material evidence) while capable of constituting an error

of law, is entirely without foundation and, in reality, is a complaint about

the weight or absence of weight given by the Commissioner to certain evidence.

In order to consider these three remaining grounds it is necessary first

to embark on an account of the long history which has preceded this appeal.

The appellant was born in Reading in England in 1933 and was educated in the

United Kingdom. He joined the British Army in 1951, serving for 25 years,

including active service in Malaya (1956) and in Aden (1958-1960). He had

married in England but had no children of this first marriage. In 1976, on

leaving the British Army, he came to Western Australia where he worked for a

short time as a personnel training officer and then for 12 years with Westrail

as a training and development officer. Since then he has been self employed

as a management consultant. He married again and has two sons of the second

marriage, each of whom is now a young adult. He had a previous episode of

psychiatric illness involving a morbid jealousy delusional state in 1988-89

wrongly believing that his wife was having an affair - having no insight into

his irrational belief and behaviour at that time. This resulted in in-patient

treatment at Sir Charles Gairdner Hospital and then at Heathcote Hospital

under consultant psychiatrists for a period of about 6 weeks. He was placed

on appropriate medication but it seems that after this incident and period of

hospitalisation the second marriage began to deteriorate leading to a

separation

(Page 6)
in 1992. In the course of his submissions Mr Clements said that he had

had no contact with his wife since his discharge from Heathcote Hospital in

1992 and that they were divorced in 1993.

Psychiatric reports in the early part of 1994 describe the appellant as

a highly articulate man who is clearly of much higher intelligence than

average, that he demonstrates a high degree of drive and initiative with a

personality style marked by obsessional traits, apparently being reinforced by

his lengthy army career, and one who is somewhat dramatic in his expression.

These set out the medical opinion that the appellant should now be regarded as

fully fit and well. In so far as it may be relevant the appellant's conduct

in the presentation of this appeal appeared to be entirely consistent with

this expression of professional medical opinion.

However, in April 1992 the appellant's wife had evidently become alarmed

at her husband's conduct and believed that he had suffered a relapse to his

morbid jealousy state. So far as is apparent from the papers, this belief was

based on a significant change in the appellant's behaviour, a period of

sleeping poorly, pacing about the house at night, increased energy, threats to

the wife associated with accusations of involvement in another affair and a

general increase of energy. Arrangements were made in April 1992 for the

appellant to undergo voluntary psychiatric treatment and he attended at least

one consultation and agreed to admit himself for hospital care some days

later. However, when one psychiatric consultation was postponed because of

the doctor's unavailability, his wife became concerned at his state and called

in the psychiatric emergency team. They examined the appellant and after

failing in their attempts to persuade him to submit to hospital treatment

voluntarily, the next day certified him as in need of treatment and by an

order conveyed him to Heathcote Hospital as a compulsory patient. The

certificate for this

(Page 7)
compulsory treatment, completed by Dr Groves of the P.E.T. on

6 April 1992 stated that on the previous day he had personally examined the

appellant and was of the opinion that:-

"He appeared to be suffering from some mental disorder by reason
that he has an acute delusional disorder with referential ideas and
dramatic change in his behaviour ....... He is a risk to himself
and others."

The appellant was admitted to Heathcote Hospital on 8 April 1992,

assessed, later transferred to an open ward and thereafter allowed to attend

work on a daily basis. He participated in occupational therapy programs and

went on to a low dosage of appropriate medication (Pimozide 4 mg mane).

Eventually his status was changed from a Division 3 to a Division 1 patient

after assessment by the Director of Psychiatric Services. He then became a

voluntary patient and was discharged from hospital on 6 June 1992 with

arrangements for follow up at the South Perth Clinic.

Most recent psychiatric examination and assessment raises a doubt as to

whether in fact, this 1992 episode was a relapse into delusional disorder

because his behaviour while a patient at Heathcote appears to have been calm

and innocuous. The consultant psychiatrist at Heathcote had noted, in the

Discharge Summary of 21 July 1992, that a delusional disorder of the morbid

jealousy type can involve the patient harming the spouse and the alleged

lover. At no time during Mr Clements' stay in the hospital did he indicate at

interviews any intention of physical harm to anyone, even though his behaviour

would have been threatening at times to his wife.

The appellant is undoubtedly aggrieved at the fact that he was subjected

to compulsory admission to Heathcote Hospital in April 1992 and declares that

his purpose in seeking documents and information now is in order to understand

fully the events of 1992 and to allow him to re-establish his good

(Page 8)
name and reputation among business colleagues by demonstrating that

there was, in fact, no basis for the allegations made against him at the time

and that he was, consequently, unnecessarily confined. In the course of

submissions Mr Clements also said that one of his reasons for desiring access

to the unedited material was to exercise his rights under s 48 to require an

amendment to be made to those records in the case of inaccuracy. It may,

immediately, be said that these appear to be understandable and legitimate

purposes to be pursued by any individual who believes himself to be subjected

to unjustifiable aspersion.

The appellant's initial request for copies of hospital case notes,

memoranda and documents, which was dated 2 November 1993 addressed to

Heathcote Hospital, sought material relating to the two periods of his

in-patient treatment at that hospital, namely:-

(a) 14 February 1989 to 23 March 1989;

(b) 8 April 1992 to 6 June 1992.

On 8 December 1993 part of the correspondence relating to Mr Clements'

case was forwarded to him by the Director of Mental Health Policy of the

Health Department. Correspondence relating to the appellant's case between

the Department and the Parliamentary Commissioner for Administrative

Investigation (Ombudsman) was excluded from access because that is exempt from

disclosure under the Freedom Of Information Act - see Glossary - Schedule 2.

Also the Health Department withheld copies of clinical reports and

correspondence generated by staff in Mental Health Service Units pending

consideration by the FOI officer at Heathcote Hospital. Thereafter, on

16 December 1993, the FOI officer of Heathcote Hospital notified the appellant

that an edited copy of his personal records, clinical reports and associated

correspondence generated by the staff at Mental Health Units would

(Page 9)
be made available to a suitably qualified person representing the

applicant, namely a consultant psychiatrist, to be nominated by him - being a

procedure contemplated by s 28 of the Act. The Health Department also

informed the applicant that the material which had been edited from the

records to be made available to his nominated psychiatrist was matter which

was exempt under Schedule 1, Clauses 3 and 5(e) of the Act, being such

information:-

(a) (Clause 3) - that its disclosure would reveal personal information

about (some other) individual;

(b) (Clause 5(1)(e)) - that its disclosure could reasonably be

expected to endanger the life or physical safety of any (other)

person.

By a separate notice dated 20 December 1993 from the Acting Director of

the Physical and Central Services Branch of the Health Department the

appellant was informed that other documents had been classified as exempt

following his request for disclosure, these being correspondence between the

Commissioner for Health and the Parliamentary Commissioner for Administrative

Investigations - Schedule 1, cl 14 of the Freedom Of Information Act.

Thereafter, by facsimile transmission of 21 December 1993 the appellant

lodged an application for review under s 40 of the Act demanding an external

review of the earlier decisions restricting access to the material requested

on the grounds that the decisions were made by the agency's principal officer

- s 39(3)(a).

This request for review was acknowledged by the Health Department on

31 December 1993 by a letter which pointed out to the applicant that the

Health Department and Heathcote Hospital are two separate agencies for the

purposes of the Act and that although the FOI officer for each agency was the

(Page 10)
same person there were different decision makers in the agencies. By

letter of 7 January 1994 from the Health Department the appellant was notified

that his application for review of the decision made by Heathcote Hospital on

his request had been completed and that it had been decided by the

Commissioner of Health, Dr P Brennan, on 6 January 1994 to confirm the initial

decision. It appears that this procedure was undertaken as an internal review

and that, consequently, the appellant's submission that he should have an

external review had been rejected. This seems to be because neither of the

earlier decisions had been made by Dr Brennan who is the principal officer of

both agencies. This process of review within the Health Department provided

an explanation to Mr Clements, by letter of 31 December 1991, that a certain

document from the P.E.T. medical officer to a doctor within the Health

Department had been transferred by the Department to Heathcote Hospital

pursuant to s 15(2) on the ground that it more closely relates to the

functions of the hospital than to the department. Other related documents

held by the Health Department had also been transferred to Heathcote Hospital

for similar reasons.

On 7 January 1994 the appellant applied to the Information Commissioner

for a review (external review) of the decision of the Health Department

denying access to the documents which had been transferred from the Department

to Heathcote Hospital. Also, by a separate application of the same date for

review by the Information Commission, the appellant sought review of the

decisions of the Heathcote Hospital to delete some materials from the edited

version of records which would be made available for inspection by his

nominated consultant psychiatrist. Although somewhat ambiguous in form this

request for review was treated by the Information Commissioner as extending to

a request for review of the decision to provide

(Page 11)
access to the edited material only to a suitably qualified person, the

nominated psychiatrist, in reliance on s 28 of the Act.

The Information Commissioner sought further particulars from the

Commissioner of Health, Dr Brennan, to support the claim that the disputed

material was exempt and required the Commissioner for Health to provide

details of the basis upon which he was of the opinion that disclosure of

information to the applicant directly might have a substantial adverse effect

on his physical or mental health. This in turn led to an explanation being

offered by the Health Department that Heathcote Hospital is an "agency" under

the Freedom of Information Act. This is so because it is a hospital

established by the Governor under s 19 of the Mental Health Act (1962) and is

hence a public body or office within the definition of that phrase in sub-para

(e) or (f) of the Glossary to the Freedom Of Information Act. The Health

Department also advised that the Commissioner of Health is the principal

officer of both the Health Department and of public hospitals which have no

Board (Heathcote included).

Faced with these requests for review the Information Commissioner

exercised her powers under s 71 to suspend her enquiries or investigations so

that efforts could be made to resolve the complaint by conciliation or

negotiation. Her office thereupon initiated the following negotiations and

inquiries:-

(a) an approach to the Heathcote Hospital to enquire whether it would

be prepared to release the whole of its files (unedited) to a

consultant psychiatrist nominated by the appellant pursuant to

s 28;

(b) an inquiry from the appellant, Mr Clements, to ask whether or not

he would be prepared to submit himself to independent

(Page 12)
examination by a psychiatrist nominated by Heathcote Hospital in

order to allow the hospital to determine whether or not disclosure

of the entire information to him would indeed have the substantial

adverse effect that the s 28 procedure was intended to avoid;

(c) an inquiry of third persons to determine whether there were any

objections to the disclosure of information provided by or

concerning them among the materials held by Heathcote which that

hospital regarded as exempt material.

These initiatives required an extension of the 30 day time limit for the

Commissioner to make a decision on a request for a review imposed under

s 76(3) but the Commissioner considered that it was impracticable to deal with

the review and employ the negotiation process within that period. After much

further incidental correspondence the appellant was seen by a consultant

psychiatrist of his own choice, Dr L C Risbey, on 5 May 1994. Dr Risbey

provided a detailed six page report on that consultation to Heathcote Hospital

on 17 May 1994 and that was in turn provided to the Health Department.

Thereafter, on 31 May 1994 the Commissioner of Health notified the Information

Commissioner that, after reviewing Dr Risbey's report and the recommendations

of doctors within the Department, the Health Department would agree that the

proposed edited version of the Heathcote materials originally requested (that

is deleting the exempt materials) should be made available to Mr Clements in

person rather than insist on the s 28 procedure originally decided. The

Commissioner for Health, however, set out reasons supporting the

classification of the remaining material as exempt. The appellant was

notified of that decision by the Information Commissioner by letter of

2 June 1994.

(Page 13)
Further correspondence between the appellant and the Information

Commissioner, led to an acknowledgement by Mr Clements that there were in fact

communications with the Parliamentary Commissioner for Administrative

Investigations (Ombudsman) among the papers access to which he was seeking and

that such documents were indeed exempt. This led the appellant to abandon his

claim for the disclosure of three identified documents which were within the

scope of his original request for review. Consequently, the only matters left

in issue for decision by the Information Commissioner were the classification

by the Health Department/Heathcote Hospital of parts of the records as being

exempt under Schedule 1, paras 3 and 5(1)(e).

On 9 June 1994 the Information Commissioner concluded her review and

published her decision and reasons for decision on the appellant's application

for external review. By this decision the Information Commissioner concluded

that the material which had been withheld from disclosure by the Heathcote

Hospital was correctly claimed to be exempt under cl 3 of Schedule 1 to the

Act but that it had not been satisfactorily shown that it was also exempt

under sub-cl 5(e). The Commissioner went on to conclude, however, that the

material was also or alternatively, exempt under cl 8(2) of Schedule 1 on the

grounds that its disclosure:-

(a) would reveal information of a confidential nature obtained in

confidence; and

(b) could reasonably be expected to prejudice the future supply of

information of that kind to the Government or to an agency.

In her reasons for decision the Commissioner said:-

"20. I have had the opportunity of examining the documents in
question and reading the parts that the agency has deleted. Members
of my staff have also consulted with a number of people, including
agency staff, in order to determine whether the

(Page 14)
claims for exemption under clauses 3, 5(3) and 8(2) are justified.
On the basis of the information before me I am satisfied that edited
access only should be provided to the applicant and that the matter
withheld from the applicant is exempt matter under one or more of
the clauses claimed. However, I am unable to fully explain my
reasons for reaching this conclusion without breaching my duty under
Section 74(1)(a) [a duty to avoid disclosure of exempt matter].

...............

26. I am also satisfied that the edited parts of the documents
contain personal information about third parties. In my view, the
public interest in protecting the privacy of the third parties in
this case is greater than the public interest in ensuring that this
applicant is able to exercise the right of access under the FOI Act.
In my view there is ample information in the documents to which
access has been granted that reveals the reasons for the applicant's
admission to Heathcote Hospital without access being given to those
parts which contain personal information about third parties. For
this reason, it is my view that some of this matter is exempt under
clause 3 and its disclosure would not, on balance, be in the public
interest.
...............

31. I am satisfied that some of the information consists of
confidential communications. Considering the nature of this
information and its sources I am also satisfied that disclosure
would prejudice the future supply of confidential information of
this type to the agency. The applicant said that there was a public
interest in protecting the rights of individuals from the power of
the bureaucracy especially in the case of psychiatry. It was the
applicant's view that there was a public interest in the
establishment of an independent body consisting of a consultant
psychiatrist, a member of the legal profession and a member of the
public, to test the validity of decisions to incarcerate people
under the provisions of the Mental Health Act.

32. I can appreciate the views of the applicant in this matter.
However, the applicant's proposal that such an independent body

(Page 15)
be established is not a matter for me and, in my opinion, the public
interest identified by the applicant, if indeed there is such public
interest, is outweighed by the public interest in maintaining the
flow of confidential information to this agency. In my view, that
type of information is essential for the proper consideration of the
management and treatment of people under the mental health system.
I am therefore satisfied that disclosure of this type of information
would prejudice its future supply to the agency because it is more
likely than not that similar sources of information would not be
available to assist in the management of future patients under the
mental health system."

The nature of the appeal on a question of law and the powers of this

Court on such an appeal are set out in ss 85 to 93 of the Freedom Of

Information Act. By s 87 the Court has power to confirm, vary or set aside

the Information Commissioner's decision and to make a decision in substitution

of that decision or remit the matter to the Commissioner for further

consideration with or without a direction. Any such order may be made subject

to terms and by s 90 the Court is obliged to avoid the disclosure of exempt

matter or of information as to the existence or non-existence of documents

containing certain exempt matter and to refrain from disclosure of or

identification of such exempt matter in any reasons for decision.

The appellant's fourth ground of appeal asserted that the material

edited from the Heathcote records was "material in documents which are not

permitted to be exempt". However it is by now quite apparent that

non-disclosure of the critical parts of the edited documents, was asserted on

well established grounds of exemption - clauses 3, 5(1)(e) and 8(2)(b) of the

First Schedule to the Act. As put, therefore, there can be no substance in

this ground of appeal so as to include a contention that the critical

information was not within the areas of exclusion contemplated by these

grounds of exemption,

(Page 16)
there is nothing in the material before this Court, or in the appellant's

submissions to make out such a case. The Information Commissioner

carefully scrutinised that material and there is simply no reason shown to

doubt the correctness of her characterisation of it. This ground of appeal

must fail.

This review of the progress of the appellant's request for access to

information and the review procedures has, unfortunately, been very long and

detailed, far more so than should have been necessary on an appeal which is

intended only to canvas questions of law. Unfortunately, I have considered it

necessary to go into this detail in this particular case because of the

appellant's contentions in Grounds 5 and 6 (above) that there were errors of

law by the appellant not having been notified of the decision made on

documents under application for access, and thereby being denied an

opportunity to make submissions for consideration before a decision was made

(Ground 6). In the course of presenting his appeal by oral argument the

appellant repeated the submission in his affidavit of 1 August 1994 (para 17)

that he had been subjected to procedural irregularity and had been denied a

rightful opportunity to make a submission to be considered as part of the

decision making process as a consequence of which he had been denied natural

justice.

In the course of the presentation of his appeal Mr Clements submitted

that the Health Department had withheld from Heathcote Hospital, when the

transfer of his request for information was made under s 14(1), materials

relating to his reference about associated matters to the Parliamentary

Commissioner for Administrative Investigations (Ombudsman). However, even if

this were true, which seems doubtful, it is not of relevance to any matter in

issue on the present appeal because, clearly, documents and correspondence

passing between the Health Department and the Ombudsman in relation to an

investigation by the latter is exempt under the Freedom Of

(Page 17)
Information Act. Further, Mr Clements himself, had accepted that fact and

modified his request for access of materials by deleting from the scope

of his original request identified documents being correspondence with the

State Ombudsman.

On the other hand, however, the appellant also submitted that some

correspondence between the Health Department and the Ombudsman was among the

materials transferred to Heathcote Hospital and that he should have been

notified of the decision of the Health Department to deal with those documents

in that way under s 30 and that it was the function of the Information

Commissioner to ensure that Heathcote was aware of its obligation in this

respect under s 63(2)(b). As his argument goes the alleged failure of the

Health Department/Heathcote Hospital to comply with the formal requirements of

s 30 in relation to the Ombudsman materials is of relevance to the ultimate

decision of the Information Commissioner to confirm the decision about the

exempt material by reliance on cl 8(2)(b) of the First Schedule, because that

alleged omission deprived him of an opportunity to make submissions to the

Commissioner on such an asserted ground for exemption as he was entitled to

expect he could make by reason of subs 70(3). I am very conscious that this

will appear to be a somewhat convoluted and obscure statement of the

appellant's argument but I can only say that this is the way it emerged and

was developed. The substance of the contention appears to be that, to the

extent that the decision of the Information Commissioner rested upon

cl 8(2)(b) of the First Schedule, that was a ground for exemption which had

not been raised by either agency before and, not having been raised, was not

addressed by the appellant either on the internal or the external review of

the original decision. That argument is plain enough, but the appellant

appears to be contending, also, that if the materials were exempt under

cl 8(2)(b), a claim for exemption

(Page 18)
on that ground should have been identified by Heathcote originally and

that it was the responsibility of the Information Commissioner to ensure that

the authorities at Heathcote were aware of that obligation. With all respect,

however, I cannot see how this last contention advances in any significant way

the argument that the appellant was deprived of an opportunity to make

submissions by reason of the fact that the Commissioner justified the original

decision on a new ground - reliance on cl 8(2)(b) of the First Schedule.

Nevertheless, I am satisfied that the Commissioner had the power to determine

the request for review in this fashion under s 76(1)(b) and also under

76(2)(c). Furthermore, the course of correspondence and negotiations employed

by the Commissioner's staff in the course of their dealings with the appellant

in an effort to conciliate and negotiate a result to the request for review

under s 71, as well as being successful in two respects:-

(i) dispensing with the s 28 procedure thus resulting in personal

access by the appellant to the edited material identified by

Heathcote Hospital; and

(ii) removing from the area of dispute the earlier claim for access to

material comprising correspondence with the Parliamentary

Commissioner for Administrative Investigations (Ombudsman);

clearly involved repeated opportunities for the appellant to address the

question of the confidentiality and significance of the material which was

claimed to be exempt, opportunities which the papers disclose the appellant

utilised to advantage. The dilemma for the appellant is that if a document

which is said to be exempt under cl 8(2)(b) of the First Schedule, or indeed

under other parts of the First Schedule, is not made available to him for

inspection it is not possible for him adequately to attempt to refute the

decision of an agency, or a review officer, that disclosure of that document

to him

(Page 19)
would reveal information of a confidential nature. Put that way it is

clear that there is no answer to the contention which would permit full

analysis of the material under dispute or allow submissions to be made about it by the

applicant yet still preserve its confidential or exempt nature if that be its

true character. That confidential and exempt materials are not to be

disclosed is an imperative imposed by s 74 of the Act as previously mentioned.

In such circumstances it cannot be open to the appellant to contend that

refusal of access to the very material which is said to be exempt or

disclosure of the nature of its confidential character constitutes a breach of

the rules of natural justice by depriving him of the opportunity to make

submissions on whether or not it is truly confidential or exempt. Once this

nature of the appellant's argument is appreciated the asserted grounds of

breach of the rules of natural justice must fail. And, further, as that is

the element common to the only two remaining grounds of appeal which raise

arguable questions of law, the appeal must fail.

Mr Clements had a supplementary argument that it was not open for the

Commissioner to conclude that some of the materials held to be exempt could be

confidential because they had, in fact, been provided to him. It is not clear

from the materials just which, if any, of the documents ultimately held by the

Commissioner to be exempt have been obtained by the appellant, nor how he came

by them although he identified a report of Dr Simon Byrne, a consultant

psychiatrist of 11 May 1992 to the Chairman of the Board of Visitors of the

Department of Health as one of them, or, rather, that the content of that

report identified or disclosed other exempt material. It is not necessary to

pursue this supplementary submission at any length. In the first place I do

not see any basis upon which that can involve any question of law arising from

the decision of the Information Commissioner and, secondly, if the appellant

(Page 20)
has already obtained access to some of the information desired the purpose of

his request has been satisfied and there is no utility in pursuing the

matter further. I must say, however, having examined the materials which were

before the Information Commissioner as forwarded to this Court pursuant to

Rules of the Supreme Court O 66 r 5 that that report of Dr Byrne, while

referring to some of the events surrounding the 1992 admission of the

appellant to Heathcote, and the circumstances which led to it, could not be

regarded as eliminating the need for confidentiality of the exempt material.

It does not dispense with the need for the protection of the confidentiality

of the exempt material which has been edited from the records of the Hospital

and the Department.

The appeal must be dismissed.