The bureaucrats strike again! (Sept 2014)

Here is the Office of the Australian Information Commisioner's (OAIC's) "judgement" against granting our FOI request to obtain the names and contact details of all these Aussie GPs on half medicare: thus stopping us banding together to fight for our rights!!

 

Please read on - if you have the stomach! (This text is taken from http://www.austlii.edu.au/au/cases/cth/AICmr/2014/103.html )

 

‘CZ’ and Department of Health [2014] AICmr 103 (30 September 2014)

Last Updated: 2 October 2014

 

‘CZ’ and Department of Health [2014] AICmr 103 (30 September 2014)

Decision and reasons for decision of Acting Freedom of Information Commissioner, Karen Toohey

Applicant:
’CZ’
Respondent:
Department of Health
Decision date:
30 September 2014
Application number:
MR12/00489
Catchwords:
Freedom of Information — Whether the request involves the use of a computer ordinarily available — Whether reasonable steps taken to locate documents — (CTH) Freedom of Information Act 1982 ss 17, 24A
 
Freedom of information — Documents to which secrecy provisions of enactments apply — (CTH) Freedom of Information Act 1982 s 38 — (CTH) National Health Act 1953 s 135A(1)

Contents

 

Summary

  1. I vary the decision of the Department of Health[1] (the Department) of 28 September 2012, under the Freedom of Information Act 1982 (the FOI Act) to refuse access to the document on the basis it does not exist. I consider that the document can be produced by the ordinary use of a computer in accordance with s 17, but that the resulting document would be exempt under s 38 of the FOI Act.

Background

  1. On 8 February 2012, the applicant applied to the Department for access to:
[N]ames and contact details of all those General Practitioners (GPs) who are designated under Medicare as “Non-Vocationally Registered”. (i.e.; they are known as ‘Non-VR GPs.)
  1. On 21 February 2012, the Department advised the applicant that it had assessed the charge to process his request as $165,983.47 and asked him to pay a deposit of $41,495.87.
  2. On 7 March 2012, the applicant wrote to the Department contending the charge had been wrongly assessed and seeking a waiver of the charge on financial hardship and public interest grounds.
  3. On 30 March 2012, the Department wrote to the applicant advising him that it had decided to reduce the charge by 50%. In its reasons, the Department said:
On the material before me, I am not satisfied that payment of a charge would cause you financial hardship. However, I will reduce the charge for your request by 50% in good faith based on the circumstances you have outlined. Should you wish a further reduction of the charges, you will need to provide the Department with evidence to support your financial hardship claim.
  1. On 25 April 2012, the applicant wrote to the Department providing further submissions in support of his request for a waiver of the charge on financial hardship and public interest grounds.
  2. The Department did not respond further to the applicant’s request for a waiver of the charge.
  3. On 23 May 2012, the Department instead wrote to the applicant refusing his FOI request under s 24A of the FOI Act on the basis that it had taken all reasonable steps to find documents but they do not exist or cannot be found.
  4. On 22 June 2012, the applicant sought internal review of that decision.
  5. On 25 June 2012, the Department informed that applicant that it had received his application for internal review and that it would provide him with a decision by 25 July 2012.
  6. On 28 September 2012, the Department affirmed its decision, saying it refused the applicant’s request under s 24A(1)(b)(ii) of the FOI Act (documents do not exist).
  7. On 26 November 2012, the applicant sought IC review of this decision under s 54L of the FOI Act.

Decision under review

  1. The decision under review is the decision of the Department on 28 September 2012 to refuse the applicant’s request.

Scope of review

  1. In his application for IC review, the applicant said In relation to s 24A:
The FOI Decision maker purports – “There is no document.” In fact my wife (who phoned the (then) FOI Coordinator...was informed there is in fact such a document. [emphasis in original] It appears the Department is trying to say there is no document in an effort to deny me accessing this information.
  1. On 27 September 2013, the Office of the Australian Information Commissioner (OAIC) wrote to the Department requesting, inter alia, a further and more detailed explanation of the searches undertaken by the Department to locate documents relevant to the request.
  2. On 1 November 2013, the Department responded:
[The applicant’s] FOI request was for “names and contact details of all [emphasis in original] those general practitioner (GPs) who are designated under Medicare as “Non-Vocationally Registered” (emphasis added). There is, [sic] and never has been, a document which contains the names and addresses of all [emphasis in original] non-vocationally registered GPs. In processing [the applicant’s] request the Department took into account the fact that, while the FOI Act provides for a right of access to documents...as distinct from information, it was obliged under subsection 17(1) to consider producing, by use of a computer, a document being a compilation of all [emphasis in original] non-vocationally registered GPs.
  1. The Department then explained that it had considered how such a list might be able to be produced through accessing information contained in two databases. It concluded that no written document existed and one could not be produced by use of a computer ordinarily available to it.
  2. On 27 November 2013, the applicant submitted:
[The Department’s] letter to me of the 21st February 2012 specified a number of 4150 GPs [emphasis in original]...
How could the Department possibly have known there are 4150 GPs in this “non-VR” category...without knowing the details of the GPs involved?? [emphasis in original]
  1. On 29 January 2014, the OAIC issued the Department with a notice under s 55V of the FOI Act requiring it to conduct further searches.[2]
  2. On 7 March 2014, the Department responded:
Our information technology officers inform us that a computer programme [sic] could be written to enable retrieval from the relevant Midiare [sic] related databases of the names and addresses of non-vocationally registered GPs. It is estimated that it would take approximately two (2) to four (4) hours to write such a programme [sic] and run the programme [sic] to produce a list of non-vocationally registered GPs...
The information contained in the databases from which any list of non-vocationally registered GPs would be drawn is information acquired by the Department in the course of performing functions under the National Health Act 1953 (NHA). Subsection 135A(1) of the NHA makes it a criminal offence to disclose such information except in the performance of functions generally under the NHA. Section 135A is a so-called “secrecy provision”, subsections (1), (4) and (9) of which are listed in Schedule 3 of the FOI Act. If a list of non-vocationally registered GP’s were to be produced by writing and running a programme [sic] as described above, the list would be an exempt document under section 38 of the FOI Act.
  1. In this IC review, I will consider whether the Department has taken reasonable steps to find the document and whether, as the Department contends, such a document would be exempt under s 38 of the FOI Act (secrecy provisions exemption).

Whether reasonable steps taken to find a document (s 24A)

  1. The Department decided that a document containing the names and details of non-vocationally registered GPs does not exist. Section 24A(1) of the FOI Act provides:

24A Request may be refused if documents cannot be found, do not exist or have not been received

Document lost or non-existent

(1) An agency or Minister may refuse a request for access to a document if:

(a) all reasonable steps have been taken to find the document; and

(b) the agency or Minister is satisfied that the document:

(i) is in the agency’s or Minister’s possession but cannot be found; or

(ii) does not exist.

  1. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. In relation to s 24A, the Guidelines explain:

The Information Commissioner considers that, as a minimum, an agency should conduct a search by using existing technology and infrastructure to conduct an electronic search of documents, as well as making enquiries of those who may be able to help locate the documents.[3]

  1. Where information is stored in electronic form, s 17 requires the agency to undertake a search of its databases to identify whether a written document can be produced from its data before the request can be refused under s 24A.
  2. Under s 17, a document exists if it is capable of being produced by the use of a computer that is ordinarily available to the agency.

Requests involving the use of computers (s 17)

  1. Section 17 of the FOI Act relevantly provides:
17 Requests involving use of computers etc.
(1) Where:
...
(c) the agency could produce a written document containing the information in discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; ...
the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
  1. In relation to s 17, the Guidelines explain:
[I]f the agency could produce a written document through the use of certain hardware and/or software that would meet the particulars of a request, it should do so (s 17(1)(c)(i)). In these cases, the agency must deal with the request as if it were a request for access to the written document and the FOI Act applies as if the agency had such a document in its possession (s 17(1)).[4]
  1. The Federal Court considered the construction of s 17 in Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67 where the Full Court said:
In our view, a computer might in some cases be ordinarily available within the meaning of s 17(1)(c)(i) even if a new computer program were required in order for the computer to produce the requested document. The agency might, for example, routinely commission or retain staff to produce new computer programs of the necessary kind.[5]

Submissions by the Department

  1. As I discussed above at [20], the Department submits that a computer program could be written to enable the names and addresses of non-vocationally registered GPs to be complied from its databases. It estimated that it would take it approximately 2 to 4 hours to write and run the program.
  2. From the evidence provided by the Department, I am satisfied that its Information Technology officers could either produce a computer program in house, or commission the production of a computer program capable of producing the requested document; and that the time involved in producing the document would be approximately 2 to 4 hours.

Is the computer ordinarily available?

  1. In Collection Point Pty Ltd v Commissioner of Taxation, the primary judge (Marshall J) distinguished between using a computer and using a computer that is ordinarily available. His Honour said:
The documents requested by Collection Point were not capable of being produced by the ATO by the use of a computer, being a use that is ordinarily available to the ATO for retrieving and collating stored information. Instead, to answer the request, the ATO would have been required to use a computer in an extraordinary manner, as compared to the ordinary processes available for the retrieval and collation of such material. Put simply, the ATO would be required to use a computer in a manner other than that which is ordinarily available to it.[6]

These comments subsequently received the approval of the Full Court.

  1. In the present case, the Department explained that the process of identifying doctors who hold only non-vocational GP registration is a two step process. Firstly, it involves searching databases to identify those doctors who have no other current specialty and, secondly, it requires a search of their medical benefits schedule claiming history to ascertain if they are active practitioners.
  2. Given that the purpose of these databases is to record the status of GPs by way of their specialty and their activity, and that the Department has IT professionals available to it to produce new programs as it requires, I am satisfied that producing a list of non-vocationally registered GPs would be using the Department’s computer in an ordinary manner.

Findings

  1. For the purposes of s 24A(1), I am not satisfied the Department has taken all reasonable steps to find the document within the scope of the applicant’s request.
  2. I am satisfied that the document does exist because it can be produced by a computer ordinarily available to the Department in accordance with s 17(1).

Documents to which secrecy provisions of enactments apply (s 38)

  1. Section 38 of the FOI Act relevantly provides:
38 Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) ...
(i) that provision is specified in Schedule 3;
  1. As I discussed above at [20], the Department submits that the information contained in the databases from which a list of non-vocationally registered GPs would be drawn is information acquired by the Department in the course of performing functions under the NHA. It therefore contends that a list produced from that information would be an exempt document under section 38.
  2. Section 135A of the NHA contains secrecy provisions.
  3. Section 135A(1) is specified in Schedule 3 of the FOI Act.
  4. Section 135A(1) provides:
A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or under the indemnity legislation or the Personally Controlled Electronic Health Records Act 2012 (whether as a delegate or otherwise), and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first-mentioned person in the performance of duties, or in the exercise of powers or functions, under this Act.
Penalty: $5,000 or imprisonment for 2 years, or both.
  1. The applicant contends that:
[T]he secrecy argument is not valid where information is with a prescribed professional body. And it certainly is. The authority overseeing “vr” GPs certainly knows details of who the so-called “non-vr”.
  1. However, I do not accept that argument. It confuses exemptions to secrecy provision in other Acts with the operation of the secrecy provision exemption in the FOI Act.
  2. Section 11A(4) of the FOI Act provides that an agency or minister is not required by the FOI Act to give a person access to a document if it is an exempt document. Section 55L(2) of the FOI Act provides that the Information Commissioner does not have power to decide that access to the document is to be given, so far as it contains exempt matter. Section 58(2) makes similar provision in relation to the Administrative Appeals Tribunal (AAT).
  3. Section 38(1) of the FOI Act is expressly subject to s 38(1A), which provides:
A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.
  1. Significantly, s 38(1A) does not make exempt documents not exempt. A document that is exempt under s 38(1) remains exempt, even though a person’s right of access to it is not affected if disclosure to that person of information in that document is not prohibited by an enactment.
  2. The effect of these provisions is that:[7]
    • an agency or minister is not required by the FOI Act to give a person access to a protected document, or a document that contains protected information, for the purposes of ss 135A(1), (4) and (9) of the NHA; and
    • the Information Commissioner does not have the power to grant access to that document in an IC review

Findings

  1. Although I have not examined the document subject to this IC review, the applicant and the Department both submit that a list of non-vocationally registered GPs would be created from databases relating to the administration of Medicare payments. A document created from those databases is a protected document for the purposes of s 135A(1) of the NHA because it would divulge information with respect to the affairs of non-vocationally registered GPs. Specifically their names, contact details and their non-vocationally registered status.
  2. Accordingly, the document is exempt under s 38 of the FOI Act.

Responding to an FOI application

  1. The Department first responded to the applicant in February 2012. The Department and the applicant have made numerous submissions over the intervening period regarding the perceived complexity of responding to his request. Nearly two years later, the Department identified in its submission of 7 March 2014 that the information sought would be covered by legislation listed in schedule 3 of the FOI Act and so subject to a secrecy provision. It is unclear why the Department did not raise this much earlier in the FOI and IC Review process which could have led to this matter being finalised in a timely manner reducing the administrative burden on government and reducing the applicant’s frustration at the time taken to arrive at this outcome.

Decision

  1. Under s 55K of the FOI Act, I vary the Department’s decision of 28 September 2012 by deciding to refuse access to the document on the basis that it is exempt under s 38 of the FOI Act.

Karen Toohey
Acting Freedom of Information Commissioner

30 September 2014

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $861, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT’s website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] The Department was the Department of Health and Ageing at the time of the FOI request that is the subject of this IC review.

[2] Under s 55V of the FOI Act, the Information Commissioner may require an agency to conduct further searches for a document.

[3] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [3.56], footnotes omitted.

[4] Guidelines [8.111].

[5] At [49].

[6] Collection Point Pty Ltd v Commissioner of Taxation [2012] FCA 720 [22].

[7] The Freedom of Information Commissioner discussed the effect of these provisions in ‘A’ and Department of Health and Ageing [2011] AICmr 4 [9]-[10].

 


 

 

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