Right to Information and Personal Injury Claims
Right to Information Access Applications for documents relevant to personal injury claims
We frequently encounter matters where a person or their legal representative makes a Right to Information Access Application ("access application") to a Council prior to or after making a personal injuries claim against the Council under the Personal Injuries Proceedings Act 2002 ("PIPA").
The purpose of making an access application in this context is generally to obtain access to as many documents as possible which might assist in prosecuting the PIPA claim as Council's disclosure obligations under PIPA are more discrete. The information obtained may also be used by legal representatives to form a view as to whether the Council bears any liability for the injury beyond the allegations made in the PIPA claim.
For example, an access application may seek access to documents which may be relevant to whether Council bears any liability for a motor vehicle accident (e.g. all reports received by Council in relation to the existence of a defect in the road at which the accident occurred between the period of January 2017 and February 2017).
Councils are obliged to decide all access applications that comply with the relevant application requirements of the Right to Information Act 2009 ("RTI Act"). In deciding access applications, responsible officers must have regard to the pro-disclosure bias of the RTI Act. In this respect, section 44(1) of the RTI Act provides that:
"It is the Parliament's intention that if an access application is made to agency or Minister for a document, the agency or Minister should decide to give access to the document unless giving access would, on balance, be contrary to the public interest".
However, given the potential implications of a PIPA claim, it is important that Council officers responsible for deciding access applications carefully consider whether they are able to exercise the limited discretion to refuse access to the narrow classes of information which are exempt from release, or contrary to the public interest to release under the RTI Act. This must necessarily involve careful consideration of whether any of the documents falling within the scope of the access application contain information which is exempt from release, would on balance be contrary to the public interest to release, or whether there are other grounds for refusing access to the document.
One of the grounds for refusing access to documents to consider within the context of an access application related to a PIPA claim is that contained within section 47(3)(f) of the RTI Act. That section provides that an agency may refuse access to a document "because other access to the document is available as mentioned in section 53". Section 53 of the RTI Act provides that other access is available to a document if, among other things, "the applicant can reasonably access the document under Another Act.., whether or not the access is subject to a fee or charge".
Sections 47(3)(f) and 53 of the RTI Act have the effect of making it important for the Council officer responsible for deciding the particular access application to determine whether the application relates to a PIPA claim which has already been commenced against the Council.
This is because if the access application is received by Council after the PIPA claim has been commenced, Council may be able to consider exercising its discretion to refuse access to certain documents sought on the basis that they are reasonably available to the claimant and their lawyers by making a request to Council's lawyers or Council's insurers' lawyers for disclosure of the relevant documents under section 27 of PIPA.
In this respect, section 27 of the PIPA relevantly provides that:
"27 Duty of respondent to give documents and information to claimant
(1) A respondent must give a claimant
(a) copies of the following in the respondent's possession that are directly relevant to a matter in issue in the claim
(i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
(ii) reports about the claimant's medical condition or prospects of rehabilitation;
(iii) reports about the claimant's cognitive, functional or vocational capacity; and
(b) if asked by the claimant
(i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or
(ii) if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.
(2) A respondent must
(a) give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent's possession later, within 7 days after it comes into the respondent's possession; and
(b) respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.
(3) If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.
(4) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure."
Ultimately, we recommend that officers responsible for deciding access applications consider implementing the following approach in respect of each application they receive which may be related to a PIPA claim:
1. Firstly, the responsible officer should contact the department within Council responsible for coordinating Council's response to PIPA claims to see if Council has been served with a PIPA claim in respect of the alleged incident to which the documents sought relate.
2. If the responsible officer is able to conclude that the documents sought relate to a PIPA claim that Council was served with prior to the date the access application was received, the officer will be able to consider the extent to which the discretion to refuse access to the documents under sections 47(3)(f) and 53 of the RTI Act can be exercised (i.e. on the basis that the applicant is reasonably able to obtain access to the documents under section 27 of PIPA). It may be that some, but not all of the documents sought would be documents reasonably available to the applicant under section 27 of PIPA. Making contact with Council's lawyers (or lawyers appointed by Council's indemnifier to defend the PIPA claim) about the documents which have already been, or could be made available to the claimant under section 27 of PIPA may be of assistance in the responsible officer making this independent decision.
3. If no PIPA claim has been served on Council prior to the date the application was received, the responsible officer will need to process and decide the application under the RTI Act as normal. The fact that the documents would be able to be accessed by the applicant if they make a PIPA claim at some time in the future will not be grounds for delaying granting the applicant access to the relevant documents.
4. To avoid any doubt, a responsible decision-maker must not rely on sections 47(3(f) and section 53 to refuse access to any documents which are not available to the applicant under the more discrete disclosure requirements of section 27 of PIPA. Responsible officers will still need to decide whether to release to the applicant other documents relevant to the access application which fall outside the scope of the section 27 disclosure obligations.
This approach will benefit Councils by avoiding the unnecessary duplication of work associated with Council releasing documents required to be disclosed under section 27 of PIPA under both the RTI Act and PIPA. For example, the responsible Council officer may complete extensive work and impose processing charges for time spent deciding whether certain documents should be released to the claimant under the RTI Act in full or partial form (e.g. with redactions of personal information), in circumstances where the relevant documents could have been provided to the claimant in full unredacted form in response to a request for disclosure under section 27 of PIPA.
For more information on this article or discuss right to information issues within the context of PIPA claims further, contact Mark Williams or Michael Cerruto on (07) 3243 0000.
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