iNova Pharmaceuticals (Australia) Pty Ltd And Secretary, Department of Health and Ageing
[2011] AATA 305
•5 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 305
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/0912 and 2010/1097
GENERAL ADMINISTRATIVE DIVISION )
ReiNova Pharmaceuticals (Australia) Pty Ltd
Applicant
And Secretary, Department of Health and Ageing
Respondent
DECISION
TribunalMr R P Handley, Deputy President
Ms A K Britton, Senior Member
Date5 May 2011
PlaceSydney
Decision
1. The Tribunal finds:
(a) the information as to the existence of the documents sought in iNova’s FOI request in relation to imiquimod is not exempt under s 37(1)(a), s 43(1)(a) or s 43(1)(b) of the FOI Act; and
(b) the information as to the existence of the documents sought in iNova’s FOI request in relation to phentermine is not exempt under s 43(1)(a) or s 43(1)(b) of the FOI Act.
2. The Tribunal sets aside the Department’s reconsideration decisions dated 7 May 2010 and remits the matters for reconsideration with a direction that the Department provide to iNova a notice which contains information as to the existence or non-existence of the documents sought in the FOI requests. The notice is to provide information current as at the date of its issue in answer to the FOI requests made by iNova on 22 October 2009.
.....................[sgd]....................
Mr RP Handley
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – application for access to documents - therapeutic goods – applications to register a therapeutic product - power to issue statement of reasons without revealing whether documents are in the agency’s possession – exemptions – decision under review set aside
RELEVANT ACT
Freedom of Information Act 1982 (Cth): ss 37, 43, 61
CITATIONS
Re iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing (2010) 116 ALD 448; [2010] AATA 542
Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd and Anor [2010] FCA 1442
REASONS FOR DECISION
| 10 May 2011 | Mr R P Handley, Deputy President Ms A K Britton, Senior Member |
The following statement of reasons for the decision was given orally at the conclusion of the hearing.
iNova Pharmaceuticals (Australia) Pty Ltd (iNova) applied for the review of decisions made by the Secretary of the Department of Health and Ageing under the Freedom of Information Act 1982 (Cth) (the FOI Act) to refuse access to documents fitting the description in iNova’s requests without informing iNova whether or not any such documents were in the Department’s possession.
The background to this matter was set out in the Tribunal’s decision in Re iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing (2010) 116 ALD 448; [2010] AATA 542, a decision that was set aside on appeal to the Federal Court: Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd and Anor [2010] FCA 1442. Justice Emmett remitted the matter to the Tribunal for reconsideration according to law.
There are two important factual matters to which attention should be drawn in these remittal proceedings. First, iNova’s FOI requests were made by letters dated 22 October 2009, and requested, in respect of phentermine:
a copy of any correspondence received by the Therapeutic Goods Administration and/or accepting into evaluation any Category 1 and/or Category 3 applications to register a therapeutic product containing the active ingredient phentermine made by sponsors other than iNova Pharmaceuticals in 2008-2009.
By a similar letter of the same date, access was sought to the same documents in relation to therapeutic products containing the active ingredient imiquimod.
Second, it should be noted that by letters dated 7 May 2010, a delegate of the Secretary of the Department, Dr Ruth Lopert, the Principal Medical Adviser in the Therapeutic Goods Administration, decided to refuse access to documents fitting the description in iNova’s requests without informing iNova whether or not any such documents were in the Department’s possession.
The Tribunal’s role is to review the reconsideration decisions made by Dr Lopert notified to iNova by letters dated 7 May 2010. In these remittal proceedings, the Department is no longer seeking to rely on the exemptions claimed in the reconsideration decisions nor is it seeking to rely on any other exemptions.
In these circumstances, given that pursuant to s 61(1) of the FOI Act the Department bears the onus of proof of establishing that its decisions to refuse access to the documents sought by iNova were justified, the Tribunal considers it appropriate to determine the matter without proceeding to a full hearing.
The Tribunal has decided that it is appropriate to make a decision in terms of the orders sought by iNova, to which the Department consents, with one additional sentence to clarify the information to be provided by the Department.
Decision
The Tribunal finds:
(a) the information as to the existence of the documents sought in iNova’s FOI request in relation to imiquimod is not exempt under s 37(1)(a), s 43(1)(a) or s 43(1)(b) of the FOI Act; and
(b) the information as to the existence of the documents sought in iNova’s FOI request in relation to phentermine is not exempt under s 43(1)(a) or s 43(1)(b) of the FOI Act.
The Tribunal sets aside the Department’s reconsideration decisions dated 7 May 2010 and remits the matters for reconsideration with a direction that the Department provide to iNova a notice which contains information as to the existence or non-existence of the documents sought in the FOI requests. The notice is to provide information current as at the date of its issue in answer to the FOI requests made by iNova on 22 October 2009.
I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President, and Ms A K Britton, Senior Member.
Signed: ...........[sgd].................................................................
A Veness, Associate
Dates of Hearing: 5 May 2011
Date of Decision: 5 May 2011
Date of written reasons: 10 May 2011
Applicant representative: Middletons
Applicant counsel: M Allars
Respondent representative: Australian Government Solicitor
Respondent counsel: S Lloyd SC
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