Procedural Direction PIC15 – Publication, de-identification, redaction, and non-publication of decisions or information

Introduction

1.  This Procedural Direction provides information about the publication of Commission decisions and the process of making an application for:

(a) de-identification or redaction of a publishable decision, or

(b) non-publication of a publishable decision, or

(c) an order prohibiting the disclosure of a publishable decision or information in proceedings.

Definitions

2.  In this Procedural Direction:

(a) disclosure means making information available to any person outside of Commission proceedings, by publication, or otherwise, such as dissemination or providing a copy of information.

(b) de-identificationis the replacement of a name or entity with a pseudonym, for example, “ABC” within a publishable decision.

(c) non-publication refers to the prohibition or restriction of publication.

(d) publish or publication refers to making information public or generally known, by disseminating or providing access to the public by any means, such as on the internet.

(e) publishable decision means a decision required to be published by section 58 of the Personal Injury Commission Act 2020.

(f) redaction is the removal of words or parts of a publishable decision.

Preliminary

3.  This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

4. The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

5. This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules 2021 (the PIC Rules).

Applicable legislation and rules

6. Parties should be familiar with the following provisions:

(a) sections 58 and 58A of the PIC Act, and

(b) rules 131, 132 and 133D of the PIC Rules.

Publication of decisions

7.  The Commission is required, under section 58 of the PIC Act, to publish decisions across all its Divisions, including:

(a) decisions of Presidential members;

(b) decisions of non-Presidential members;

(c) decisions of merit reviewers and merit review panels, and

(d) decisions of medical appeal or review panels.

8.  Certain decisions are not published, such as decisions by medical assessors following an initial medical assessment. However, the Commission does publish decisions of a medical review medical panel or medical appeal panel should the medical assessment be subject to review or appeal.

9. The publication of Commission decisions promotes the principle of open justice and the objects of the PIC Act, including ensuring the Commission is accessible; promoting public confidence in decision-making; the publication and dissemination of information concerning its processes; establishing effective communication about its role; and to make appropriate use of the knowledge and experience of members and decision-makers.

10. In accordance with rule 131 of the PIC Rules, decisions are published on the Commission website, and on affiliated external legal databases (AustLII, Jade BarNet, Lexis Nexis, and Thomson Reuters).

11.  Decisions are published in full, unless subject to a direction to de-identify or redact the decision under rule 132 of the PIC Rules, or a non-publication order under section 58A of the PIC Act.

12. Decisions are published no earlier than 7 days after they are issued to parties to allow for an application for redaction, de-identification, or non-publication to be made, unless there is consent from the parties and the President has ordered otherwise.

13. Once an application is made, the Commission will refrain from publication of the decision, until such time as the application has been determined.

14. A party, their legal representative or agent, or any other person, therefore must not publish or disclose a decision to any third party (except to a legal representative if required for the purpose of obtaining legal advice) within a period of 7 days after the decision is issued, or while an application under rule 132 of the PIC Rules or section 58A of the PIC Act is on foot.

15. When making an application, parties and their legal representatives must specify whether they are making it under rule 132 of the PIC Rules or under section 58A of the PIC Act. Parties are to consider whether de-identification or redaction is sufficient, say, to protect the identity of persons’ named in the publishable decision due to the sensitive nature of the issues or evidence, or whether a ‘relevant order’ for non-publication is necessary. A ‘relevant order’ may be considered where the evidence and issues are of such a confidential nature that non-publication of any information may be justifiable, despite the statutory mandate to publish under section 58 of the PIC Act.

16. Notwithstanding the ability to apply for de-identification or redaction under rule 132 of the PIC Rules, or for a ‘relevant order’ under section 58A of the PIC Act, parties, legal representatives and agents are reminded of the implied (Harman) undertaking not to use information produced or received during proceedings for any purposes extraneous to the proceedings.

De-identification or redaction of a decision under rule 132 of the PIC Rules

17.  Before a decision is published, the Commission, or the President, may direct that a decision be de-identified or redacted of their own motion, or on the application of a ‘relevant person’ at any time during proceedings, or within 7 days of proceedings being finalised and a decision being issued.

18. A ‘relevant person’ includes a party to the proceedings, a person named in the decision, or another person found to have a sufficient interest to make the application (rule 132(6) of the PIC Rules).

19. The Commission, or the President, in determining an application for a direction for de-identification or redaction, must have regard to the matters under rule 132(4) of the PIC Rules.

How to make an application

20. Parties and their legal representatives are encouraged to make an application for de-identification or redaction as early as possible during proceedings.

21. Once a decision is issued, an application can be made to the President within 7 days, after which time the decision will be published.

22. There is no prescribed form for making an application. An application can be made:

(a) by way of written submissions;

(b) by raising it with the decision maker during formal Commission proceedings, for example, during a conference or hearing, or

(c) if the matter has concluded and a decision has been issued, by emailing the Commission’s Registry at help@pi.nsw.gov.au.

23. An application must address:

(a) whether de-identification or redaction is being sought;

(b) which names or entities within the decision are to be de-identified, or which parts or words of the decision are to be redacted with reference to the relevant paragraph numbers in the decision where the parts or words appear, and

(c) reasons why the decision ought to be de-identified or redacted which address the matters the Commission must have regard to under rule 132(4) of the PIC Rules:

(i) the objects of the PIC Act and enabling legislation, including that the Commission be open and transparent about its processes;

(ii) the prevention of prejudice to the proper administration of justice;

(iii) the safety, health and wellbeing of a person affected or named by the publishable decision;

(iv) the views of any other party to the proceedings;

(v) whether it is necessary in the public interest for the direction to be given, and

(vi) whether the public interest in giving the direction significantly outweighs the public interest in open justice.

24. Where verbal submissions are made to a decision-maker during the course of proceedings, the other parties will be provided with an opportunity to respond.

25. Where the application is made in writing, the applicant is to ensure a copy of the application is served on the other parties to proceedings. If service has not been effected, the Commission will share the application with the other parties to the proceedings. A written response from the other parties to the application must be lodged within 3 days of receiving the application, unless otherwise directed by the Commission. Any response should include submissions as to why the application should or should not be allowed.

26. If necessary, parties may be directed to file further submissions or evidence as appropriate to properly determine the application.

27. Even if other parties consent to the application, the Commission must have regard to all the factors outlined at rule 132(4) of the PIC Rules. The views of the other parties are one of the matters the Commission must consider, under rule 132(4).

28. The application will be determined by the Commission or the President, who will issue orders either granting the application in whole or in part, or denying the application.

29. If the application is made while proceedings are still on foot, the determination may be made by way of interlocutory orders, or within the final decision for the matter. If proceedings have been completed, a separate determination will be issued.

30. If an application is granted in whole or part, the publishable decision will be amended in accordance with the orders made, and then published. If de-identification is ordered, the relevant names or entities will be replaced with a pseudonym. If redaction is ordered, the relevant words or parts of the decision are replaced with ‘[redacted]’.

31. If an application is not granted, the decision will be published in full.

32. Under rule 132(1) of the PIC Rules, de-identification or redaction can only be ordered before a decision is published. Applications made after a decision is published will not be considered, except in very limited circumstances and at the discretion of the relevant member or the President, who must decide whether to dispense with the requirements of the rule.

Non-publication and restriction of disclosure of decisions and other information

33. Section 58A of the PIC Act provides an exception to the statutory mandate to publish decisions. It allows the President to order the non-publication of publishable decisions by way of a ‘relevant order’. The power sits with the President alone.

34. A ‘relevant order’ means an order prohibiting or restricting any of the following:

(a) publication or disclosure of details of a publishable decision;

(b) publication or disclosure of the name, or other identifying material, of a party or a witness to the proceedings;

(c) publication or broadcast of a report, including a sound recording, video recording or transcript of proceedings in the Commission;

(d) publication of evidence or matters contained in documents lodged with the Commission, or

(e) disclosure of evidence given before the Commission, or contents of a document lodged with the Commission, to some or all of the parties to the proceedings.

35. The President may determine to make a ‘relevant order’ if satisfied it is desirable to make the order because of the confidential nature of the evidence, or for another reason, such as:

(a) the sensitive nature of the issues in dispute and the evidence in proceedings;

(b) the existence of suppression or non-publication orders made in related proceedings or in other Courts or tribunals;

(c) potential harm to a party or a witness;

(d) identification of a minor, or

(e) any other matter.

36. A ‘relevant order’ under section 58A of the PIC Act may be made at the President’s own motion, or on the application of a party to the proceedings, at any stage during or after proceedings.

37. A member may also refer a matter to the President for consideration of a ‘relevant order’ or invite parties to make an application to the President.

How to make an application

38. Parties and their legal representatives are encouraged to make an application as early as possible, if the nature of the evidence or the issues in the proceedings are of such a confidential nature that may warrant seeking an order.

39. There is no prescribed form for making an application. Applications are to be made in writing, addressed to the President as follows:

(a) by way of written submissions, or

(b) if the matter has concluded and a decision has been issued, by emailing the Commission’s Registry at help@pi.nsw.gov.au.

40. An application by a party or a referral by a member to the President, must outline:

(a) the nature of the ‘relevant order’ sought under section 58A of the PIC Act, such as non-publication of the decision or restriction of the disclosure of information, or both, and

(b) the reasons, supported by evidence (where possible) as to why the decision or information should not be published or disclosed, despite the statutory mandate under section 58 of the PIC Act to publish decisions. It is not sufficient that the reason provided is simply that the evidence is “confidential” or “sensitive”.

41.The applicant is to ensure a copy of the application is served on the other parties to proceedings. If service has not been effected, the President will share the application with the other parties to the proceedings.

42. A response from the other parties to the application must be lodged within 3 days of receiving the application, unless otherwise directed by the President. Any response should include submissions as to why the application should or should not be allowed.

43. If necessary, parties may be directed to file further submissions or evidence as appropriate to properly determine the application.

44. In deciding an application for a ‘relevant order’, under rule 133D of the PIC Rules, the President will consider the application, each written response to the application, whether the parties consent, and any other matter. Consent of the parties is not determinative, as the President must have regard to any matter considered appropriate in deciding an application for a ‘relevant order’.

45. Once determined, the President will issue a written decision and ‘relevant orders’ (if made) to the parties, either granting the application in whole or in part, or denying the application.

46. Where an order for non-publication of a decision is made, the Commission will not publish the decision. Where orders restricting the disclosure of a decision, information or evidence are made, the parties must comply with those orders and not disclose the decision, information or evidence to another person, including providing a copy to another person.

47. The President may order that the ‘relevant orders’ be shared, only to necessitate compliance with those orders.

48. In some cases, the President may consider the appropriate form of relief is de-identification or redaction of a decision under rule 132 of the PIC Rules or another ‘relevant order’, rather than non-publication. The President may also refer the application back to a member to deal with it under rule 132 of the PIC Rules.