Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 required consideration of an application for access to documents under the Government Information (Public Access) Act 2009 (NSW) [GIPA].

The documents in question had been brought into existence by the hospital, following a complaint made to the Health Care Complaints Commission about treatment in the hospital. The hospital declined access to five documents which were statements by medical practitioners. It argued that there is an overriding public interest against disclosure of HCCC investigation documents.

The Tribunal at [60] said that order for the HCCC to fulfil its investigative obligation, it is essential that those providing information as part of an investigation are encouraged to give frank and honest responses to the items in issue. Some people would not be prepared to speak frankly to investigators or they might not give accurate information unless they can be assured of confidentiality.

The Tribunal affirmed the access refusal by the hospital, saying:

67     In the circumstances it is not necessary that I consider the relative strengths of the factors in favour of disclosure and those against disclosure. However, I note that under the HCC Act the protection of the health and safety of the public must be the paramount consideration and I am generally of the view that release of information provided in confidence in relation to a complaint might affect the HCCC’s ability to carry out investigations and the exercises of its functions. If the individual authors of the statements consent to the release, the Respondent can weigh this against the factors in favour of release and may well form the view that the statements should be released.

68     In my view, the Respondent has correctly determined that that there is a conclusive presumption of an overriding public interest against disclosure of the statements. The decision to refuse to release the information should therefore be affirmed.

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