Mullen and Aged Care Complaints Commissioner (Freedom of information)
[2017] AATA 2556
•1 December 2017
Mullen and Aged Care Complaints Commissioner (Freedom of information) [2017] AATA 2556 (1 December 2017)
Division:GENERAL DIVISION
File Number: 2017/3100
Re: John Mullen
APPLICANT
Aged Care Complaints CommissionerAnd
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:1 December 2017
Place:Perth
The decision under review is affirmed.
......[sgd].............................................................
Deputy President S Boyle
CATCHWORDS
FREEDOM OF INFORMATION – Freedom of Information request – Aged Care Act – whether documents requested exempt – whether disclosure prohibited – ‘protected information’ – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 43(1)(b) – s 43(1)(c)(i)
Aged Care Act 1997 – s 86-1 – s 86-1(a) – s 86-1(b)(i) – s 86-1(b)(ii) – s 86-2 – s 86-2(1) – s 86-2(1)(b) – s 86-2(1)(c) – s 86-2(2) –s 86s 86 – s 86-3(1) – s 86-9 – s 86-9(1) – s 96-2 – Sch 1Freedom of Information Act 1982 – s 11(1) – s 20(3) – s 24(1) – s 24AA – s 38 – s 38(1) – s 38(1)(b)(i) – s 38(1A) – s 38(2) – s 47E(d) – s 47F – s 55K – s 55K(2) – s 57A(1)(a) – s 93A(2)
Privacy Act 1988 – s 6(1) (definition of “personal information”)
CASES
Mullen and Chief Executive Officer, Australian Aged Care Quality Agency (Freedom of information) [2017] AATA 1805SECONDARY MATERIALS
Freedom of Information Guidelines (made under s 93A of the Freedom of Information Act 1982) – paras 5.109 to 5.114, 5.119 to 5.121
REASONS FOR DECISION
Deputy President S Boyle
1 December 2017
THE APPLICATION
This is an application for the review of a decision of the Australian Information Commissioner (IC) made on 6 April 2017 (the IC’s Decision). The IC’s Decision was made under s 55K of the Freedom of Information Act 1982 (the FOI Act) and this application is made under s 57A(1)(a) of the FOI Act.
BACKGROUND
The background to this application is as follows.
On 14 August 2015, the applicant made an FOI request to Department of Social Services (DSS) seeking access to the following documents (see T3, pp 12-14):
“Part 1:
This refers to a complaint made to the Aged Care Complaints Scheme on 14 August 2012, the complaint was originally given the "Case ID" number 129782, but I now believe much of the discussion about this case may not have been recorded against this case number, but discussions on this same matter continued into November 2012 and may have been in part captured under another Case ID issued; 132562.
The information I am seeking in this part:
1a) A full log of all activities in this matter; including records of all correspondence, conversations (including by phone) and meetings, with all notes made accompanying these activities and minutes of any meetings.
The following are of particular interest;
- A copy of the referral email (as supplied to the Aged Care Commissioner for her investigation no. COM000157 allegedly sent but not delivered to the Aged Care Standards and Accreditation Agency (ACSAA, or Agency),
- Notes from the conference call (I sat in on) between Scheme members and Advocare in September 2012,
- Minutes/notes taken from the meeting held at Carinya of Bicton, 10:00am, 2/11/2012, including the preamble in which discussion about the Systematic Understaffing was arbitrarily removed from the agenda.
1b) Any background information gathered to help with this matter.
1c) Any analysis carried out or 'working notes'.'
- Of particular interest are any 'working notes' made by the Complaints Resolution Officer, Mrs. Joanna Truslove, following the meeting held at Carinya of Bicton 2/11/2012, after which she said she would go over "all the information".
1d) Any Advice obtained by the complaints Scheme and/or parties the Scheme interacted with (such as the Agency).
1e) Any other Information not specified above that has any relation to Investigation of my concerns about systematic understaffing at Carinya of Bicton in the period August 2012 to January 2013.
Part 2:
This refers to Aged Care Complaints Scheme's response(s) to the Commonwealth Ombudsman's "Investigation" of this matter which was conducted from January 2014 to July 2015 under the Ombudsman's reference number; 2013-505570.
The information I am seeking in this part:
2a) A full log of all activities undertaken in responding or preparing to respond to the Ombudsman over this matter; Including records of all correspondence, conversations (including by phone) and meetings, with all notes made accompanying these activities and minutes of any meetings.
2b) Any background Information gathered to help with this matter. 2c) Any analysis carried out or 'working notes'.
2d) Advice obtained by the Scheme and/or parties the Scheme Interacted with.
Page 2
2e) Any other Information not specified above that has any relation to the systematic understaffing issue under Investigation.
Part 3:
This refers to Aged Care Standards and Accreditation Agency (ACSAA) and now the Australian Aged Care Quality Agency, aka the 'Agency' Interaction with the "Approved Provider" Bansley Pty, Ltd. who operate the aged care facility Carinya of Bicton In Western Australia.
The information I am seeking In this part is a log of all contact the Agency has had with the facility Carinya of Bicton from January 2011 to the most recent available, including the numbers of staff attending (or working remotely for) the facility and the dates they 'worked' (provided services/generated Income in whatever capacity) for the facility.
Part 4:
This refers to Aged Care Standards and Accreditation Agency (ACSAA) and the Australian Aged Care Quality Agency, aka the 'Agency' response(s) to the Commonwealth Ombudsman's "Investigation" of the systematic understaffing matter raised In 2012 which was conducted from January 2014 to July 2015 under the Ombudsman's reference number; 2013-505570.
The information I am seeking in this part:
4a) A full log of all activities in this matter; including records of all correspondence, conversations (including by phone) and meetings, with all notes made accompanying these activities and minutes of any meetings.
4b) Any background Information gathered to help with this matter. 4c) Any analysis carried out or 'working notes'.
4d) Advice obtained by the Agency and/or parties the Agency interacted with.
4e) Any other Information not specified above that has any relation to the systematic understaffing Issue under Investigation."
On 19 August 2015, DSS transferred parts 3 and 4 of the FOI request to the Australian Aged Care Quality Agency pursuant to s 16 of the FOI Act (see T3, p 14).
On 4 September 2015, DSS wrote to the applicant advising of an intention to refuse his FOI request for a practical refusal reason and invited the applicant to make a written submission in support of his application as worded, or to revise the scope of his FOI request so that the practical refusal reason no longer exists (T3, pp 12-15).
By letter dated 11 September 2015, the applicant largely maintained the scope of his original FOI request, although he agreed that documents he had already sent or received and duplicates could be removed from the scope of the FOI request (T5, pp 19- 21).
On 21 September 2015, a decision maker from DSS decided to refuse access to the documents pursuant to s 24(1) of the FOI Act. The decision maker was satisfied that a practical refusal reason still existed, namely, that processing the FOI request would substantially and unreasonably divert the resources of DSS from its other operations (T6, pp 22-27).
On 19 November 2015, the applicant lodged an application for review of the decision of 21 September 2015 with the Office of the Australian Information Commissioner (OAIC), pursuant to s 54L of the FOI Act (T7, pp 29-34).
On 9 March 2016, the respondent confirmed to the OAIC that the applicant's FOI request had been transferred to the respondent for any further required action (T8, p 37).
On 22 July 2016, following correspondence with the OAIC, the respondent made a revised decision in relation to the applicant's FOI request pursuant to s 55G of the FOI Act (T12, pp 56-69). The respondent decided that the practical refusal reason no longer existed. The respondent identified 115 documents, with attachments, that fell within the scope of the applicant's FOI request. The respondent granted access in full to 54 documents, access in part to 43 documents and decided that 18 documents were exempt in full. The exemptions that were applied to the documents were exemptions pursuant to s 38(1) and s 47E(d) of the FOI Act.
On 25 November 2016 the OAIC wrote to the respondent:
(a)advising that the applicant had requested the original electronic version of documents 1, 45 and 54; and
(b)questioning whether parts of document 15 could be released on the basis that those parts comprised the applicant's personal information (T15, pp 78-79).
On 5 December 2016, the respondent made a further revised decision under s 55G of the FOI Act to grant the applicant access to document 15 in part (T17, pp 84-85).
On 25 January 2017, the respondent made a further revised decision under s 55G of the FOI Act, this time to allow the applicant access to documents that had recently been released to him in relation to a Federal Court proceeding and which also fell within the scope of the applicant's FOI request in this matter (T18, pp 86-88).
On 15 February 2017, the respondent made a further revised decision under s 55G of the FOI Act to separate the description of one particular document and an attachment to that document (T19, p 98).
On 24 March 2017, the respondent made a further revised decision under s 55G of the FOI Act to allow the applicant access to further duplicate copies of the documents that had been released to the applicant in a previous revised decision (T22, p 114).
On 28 March 2017, the OAIC sought information from the respondent in relation to the applicant's claim that a document within the scope of the FOI request (the referral email) had not been provided and noting the respondent's decision that the document could not be located (T23, p 124).
On 29 March 2017, the respondent responded to the OAIC's request for information (T24, pp 126-129). In relation to the referral email, the respondent:
(a)confirmed that the referral email sought by the applicant was an email that was purportedly sent by an officer of the Aged Care Complaints Scheme (Scheme) to the Aged Care Standards and Accreditation Agency (Accreditation Agency) attaching a referral dated 27 August 2012;
(b)confirmed that Scheme staff had advised that they attempted to send the referral email on 27 August 2012, but an IT error meant it was not delivered and the referral email was never received by the Accreditation Agency; and
(c)advised that in the course of an investigation in 2013, Scheme staff told the Aged Care Commissioner that the email was not sent due to an IT error and they did not know about this at the time because they did not receive an undeliverable email.
The letter of 29 March 2017 also described the steps taken to locate the referral email.
The IC’s Decision
The IC’s Decision (T2) was to affirm the decision of the DSS made on 21 September 2015, as varied by the respondent on 22 July 2016, 5 December 2016, 25 January 2017, 15 February 2017 and 24 March 2017. Relevantly the IC’s Decision:
(a)upheld exemptions claimed by the respondent over some documents and parts of documents pursuant to s 38 of the FOI Act;
(b)held that allowing the applicant to have access to a particular document in its original electronic form would unreasonably interfere with the operations of the respondent; and
(c)found that the respondent had taken all reasonable steps to locate a particular document and that the document does not exist.
As noted above, the DSS original decision of 21 September 2015 was varied 5 times. The original decision not to grant access was made under s 24(1) of the FOI Act on the basis that there were practical refusal reasons as defined in s 24AA of the FOI Act.
That original decision was subsequently varied by the respondent and, in effect, replaced by the variations identified in paragraph 19 above. The effect of these variations was to replace the practical refusal reasons with exemptions to access to requested documents pursuant to s 38 (secrecy) and s 47E(d) and s 47F of the FOI Act.
The applicant does not seek review of the exemptions claimed under s 47E(d) or s 47F of the FOI Act. The only review sought by the applicant is in relation to the exemptions claimed and found by the IC on the basis of the information/documents being sought being or containing protected information as that term is use in the Aged Care Act 1997 (the Aged Care Act) (applicant’s Statement of Facts, Issues and Contentions (applicant’s SFIC), paragraph 2.1).
The end result of the original decision of the DSS, the 5 variations and the IC’s Decision is set out in Annexure A to this decision which was Exhibit R4 tendered at the hearing. This Annexure identifies the documents over which exemptions in whole or in part are claimed under s 38 of the FOI Act. In all 29 documents fall into that category.
As is set out in paragraph 19 above, the IC’s Decision also covered a claim by the applicant that not all reasonable steps had been taken by the respondent to locate a particular email. The IC’s Decision was that all reasonable steps had been taken and that the document sought did not exist. The applicant advised at the commencement of the hearing that he no longer sought a review of that aspect of the IC’s Decision.
The applicant also did not seek review of the IC’s Decision that “giving the applicant access to the original electronic version of the documents by allowing him to inspect the database (as sought by the applicant) would unreasonably interfere with the operations of the Commissioner” for the purposes of s 20(3) of the FOI Act (paragraph 33 of the IC’s Decision - T2 at 9) (applicant’s SFIC paragraph 2.2)
The only issue therefore for the Tribunal is whether the exemptions found by the IC’s Decision to apply under s 38 of the FOI Act do apply.
THE ISSUES
The primary issue for determination by the Tribunal is whether the exemption under s 38 of the FOI Act applies to the documents determined to be exempt by the IC. That requires determination of:
(a)whether the documents are “protected information” within the meaning of s 86-1 of the Aged Care Act; and
(b)if the information is “protected information”, whether the disclosure of the document would be prohibited by the Aged Care Act.
In addition the applicant argues that the Tribunal should, presumably under s 43(1)(b) or s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, vary or set aside the IC’s Decision and substitute a decision to the effect that the IC should have exercised his power under s 55K(2) of the FOI Act to exercise the powers of the person who made the decision being reviewed by the IC. The power that the applicant says that the IC should have exercised under s 55K(2) of the FOI Act is the power of the Secretary under s 86-3(1) of the Aged Care Act to disclose protected information.
THE LEGISLATION
Section 11(1) of the FOI Act provides
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 38(1) of the FOI Act provides an exemption for documents that are subject to secrecy provisions of enactments. That subsection relevantly provides:
(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) either:
(i) that provision is specified in Schedule 3; or
(ii)this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
Section 38(2) of the FOI Act is as follows:
(2)Subject to subsection (3), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.
Subsection 86-2(1) of the Aged Care Act is specified in Schedule 3 to the FOI Act and provides that a person is guilty of an offence if:
(a) the person makes a record of, discloses or otherwise uses information; and
(b) the information is protected information; and
(c)the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act or the Aged Care (Transitional Provisions) Act 1997.
‘Protected information’ is defined in s 86-1 of the Aged Care Act to mean information that:
(a)was acquired under or for the purposes of this Act or the Aged Care (Transitional Provisions) Act 1997; and
(b) either:
(i) is personal information; or
(ii) relates to the affairs of an approved provider; or
(iii) relates to the affairs of an applicant for approval under Part 2.1; or
(iv) relates to the affairs of an applicant for a grant under Chapter 5.
‘Personal Information’ is defined in Schedule 1 – Dictionary to the Aged Care Act as having the meaning of that term in the Privacy Act 1988 which, in turn, defines personal information as follows in s 6(1):
"personal information" means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Subsection 38(1A) of the FOI Act relevantly provides that a person’s right of access is not affected because the document is an exempt document under s 38(1) if disclosure to that person is not prohibited by any relevant enactment (in this case the Aged Care Act). Subsection 86-2(2) of the Aged Care Act provides that s 86-2 does not apply to:
(a)conduct that is carried out in the performance of a function or duty under this Act or the Aged Care (Transitional Provisions) Act 1997 or the exercise of a power under, or in relation to, this Act or the Aged Care (Transitional Provisions) Act 1997; or
(b) the disclosure of information only to the person to whom it relates; or
(c) conduct carried out by an approved provider; or
(d) conduct that is authorised by the person to whom the information relates; or
(e) conduct that is otherwise authorised under this or any other Act.
Subsection 38(2) of the FOI Act provides that s 38 does not apply in relation to a document so far as it contains personal information about the person who requested access to the document.
Section 55K of the FOI Act, insofar as it is relevant to the present case, is in the following terms:
(1)After undertaking an IC review, the Information Commissioner must make a decision in writing:
(a) affirming the IC reviewable decision; or
(b) varying the IC reviewable decision; or
(c) setting aside the IC reviewable decision and making a decision in substitution for that decision.
(2)For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision
Relevantly s 86-3 of the Aged Care Act provides that:
(1) The Secretary may disclose *protected information:
(a)if the Secretary certifies, in writing, that it is necessary in the public interest to do so in a particular case—to such people and for such purposes as the Secretary determines; and
Subsections (b) to (j) of s 86-3 of the Aged Care Act set out the people to whom and the circumstances in which the Secretary may disclose protected information. None of those persons or circumstances is relevant in this case.
Section 86-9 of the Aged Care Act provides that:
(1)The Secretary may make publicly available the following information about an * aged care service:
(a) the name, address and telephone number of the service;
(b) the number of * places (if any) included in the service;
(ba)if the service is a home care service--the number of care recipients provided with care through the service;
(c) the location of the service and its proximity to community facilities, for example, public transport, shops, libraries and community centres;
(d) the services provided by the service;
(e)the fees and charges connected with the service, including * accommodation payments, * accommodation contributions, * accommodation bonds and * accommodation charges;
(f)the facilities and activities available to care recipients receiving care through the service;
(g) the name of the approved provider of the service and the names of directors, or members of the committee of management, of the approved provider;
(h) the amounts of funding received by the service under this Act or the Aged Care (Transitional Provisions) Act 1997 ;
(i) information about the variety and type of service provided by approved providers;
(j) any action taken, or intended to be taken, under this Act to protect the welfare of care recipients at a particular service, and the reasons for that action;
(k) information about the service's status under this Act (for example, the service's accreditation record);
(l) information about the approved provider's performance in relation to responsibilities and standards under this Act;
(m) any other information of a kind specified in the Information Principles for the purposes of this section
“Secretary” is defined in Schedule 1 – Dictionary, of the Aged Care Act as “the Secretary of the Department”.
To assist with the application of the provisions of the FOI Act, the IC has issued guidelines (the FOI Guidelines) under the FOI Act. When applying the provisions of the FOI Act, decision makers, including the Tribunal, must have regard to the FOI Guidelines (see s 93A(2) of the FOI Act). The FOI Guidelines are not binding, but decision makers should apply the FOI Guidelines unless there are cogent reasons not to do so. Paragraphs 5.109 to 5.114 of the FOI Guidelines relate to s 38 of the FOI Act.
The FOI Guidelines include the following paragraphs:
5.119Section 38 is intended to preserve the operation of specific secrecy provisions in other legislation, including in cases where no other exemption or conditional exemption is available under the FOI Act. The primary purpose of secrecy provisions in legislation is to prohibit unauthorised disclosure of client information. Most secrecy provisions allow disclosure in certain circumstances, such as with the applicant’s consent where the information relates to them, or where it is in the course of an officer’s duty or performance of duties, or exercise of powers or functions, to disclose the information.
5.120The effect of s 38(1A) is to limit the use of s 38 to the terms of the particular secrecy provision involved, and the exemption is only available to the extent that the secrecy provision prohibits disclosure. Contrary to normal FOI practice, a decision maker contemplating an exemption under s 38 must consider the identity of the FOI applicant in relation to the document. This is because s 38(1A) permits disclosure of a document in cases where the prescribed secrecy provision does not prohibit disclosure to that person.
5.121Section 38 does not apply to documents in so far as they contain personal information about the applicant (s 38(2)). The exception applies only to personal information about the applicant and not to ‘mixed personal information’, that is, personal information about the applicant which, if disclosed, would also reveal personal information about another individual. If the FOI applicant’s information can be separated from any third party personal information, the FOI applicant’s information will not be exempt under s 38(1) and can be disclosed. The decision maker may consider providing access to an edited copy (s 22).
(Footnotes omitted)
CONSIDERATION
The primary matter for determination by the Tribunal is whether the 29 documents, or the relevant parts, found by the IC’s Decision to be exempt from production under the FOI Act, are documents that come within the scope of s 38(1) of the FOI Act.
The respondent summarises his case in paragraphs 32 to 39 of his Statement of Facts, Issues and Contentions (respondent’s SFIC) as follows:
32.The respondent contends that the documents identified in the schedule of exempt documents contain protected information on the basis that the information contained in the documents was obtained for the purposes of the Aged Care Act and is either personal information or information that relates to the affairs of an approved provider.
33.The information contained in the documents was obtained by the respondent under Parts 4.1, 4.2 or 4.3 of the Aged Care Act in the course of carrying out functions delegated pursuant to s 96-2(1) of the Aged Care Act.
34.'Personal information' is defined in the dictionary in Schedule 1 of the Aged Care Act to have the same meaning as in the Privacy Act 1988, namely:
... information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b)whether the information or opinion is recorded in a material form or not.
35.Some of the information comprises personal information about staff members of the approved provider. The personal information is protected information within the meaning of s 86-1 of the Aged Care Act.
36.The phrase 'relates to the affairs of an approved provider' is not defined in the Aged Care Act, nor has this phrase in the Aged Care Act been considered judicially.
37.The respondent contends that this phrase should be interpreted broadly to include information that has a relationship to the approved provider's obligations, business or activities. In making this contention, it is noted that only information that is obtained by a person under or for the purposes of the Aged Care Act (or the Aged Care (Transitional Provisions) Act 1997) can be protected information within the meaning of s 86-1. Hence the interpretation of the phrase 'relates to the affairs of an approved provider' is to be considered in a context where the types of information that can comprise protected information is already limited.
38.The interpretation proposed by the respondent would be consistent with:
38.1.the text, context and purpose of the provision, including that the Aged Care Act which in effect requires approved providers to provide information to the respondent and others acting under the Aged Care Act, and this provision affords some protection to the approved providers by limiting disclosure of the information provided; and
38.2.the construction of a similar phrase 'with respect to the affairs of another person' in s 130(1) of the Health Insurance Act 1973, as considered in Walker v Secretary, Department of Health and Ageing [2016] FCA 233 (Walker), in which the Court found that the affairs of another person extended to the person's business or professional activities and was not confined to the personal information of a person, taking into account the following considerations:
38.2.1.'the affairs of' provides a degree of limitation and means that the information must not just relate to the person (or in the present case, the approved provider) but must relate to the affairs of the person (or approved provider) (Walker at [42])
38.2.2.the ordinary meaning of 'the affairs' is broad (Walker at [43]).
39.The respondent submits that the documents claimed to be exempt include information which relates to the affairs of an identified approved provider and is therefore protected information.
The applicant expresses his case in broader terms. He submits:
25.In making your determination, I ask the Tribunal to consider that an Aged Care Facility takes on the responsibility of transparency in their operation when they accept Federal Government funding for their efforts in providing care to aged Australian citizens. The facilities have stringent reporting requirements to aged care agencies, but when they submit that information to a government agency, it becomes a document of that agency, as defined in part 4 of the FOI Act.
26.I ask that the Tribunal consider the intentions of the legislators who wrote the FOI and AC Acts, and how they would want/expect their laws to be applied, in light of the problem(s) I am highlighting and pursuing in this case. The secrecy provisions within the AC Act were primarily intended to protect the privacy, dignity and patient confidentiality of care recipients, at a time when they are very vulnerable and near their end of life.
…
30.I contend that the respondent has wrongly withheld documents from me by inventing a definition of protected information that is all encompassing and contrary to the objects of the FOI Act and the IC Guidelines.
31.The Respondent would have us believe (their SFIC statement paragraph 37), that there is some limitation in their self-invented definition of the phrase "relates to the affairs of an approved provider" because information has to be obtained by a person doing their job under the AC Act. Since there is no other way for the Respondent to acquire information other than in the course of their duty under the AC Act, this means the definition is limited to all the information they collect. This is effectively no limitation at all, which is not the intention of the objects or guidelines.
32.Surely it is obvious that the legislators never intended the FOI and AC Acts to produce this 'broad' all encompassing level of secrecy, where the only information that can be released is that which directly relates to the personal affairs of an applicant.
33.The Respondent invents an interpretation of the purpose of the secrecy provision at paragraph 38.1 of their SFIC. In effect saying that because of requirements for care providers to give information to the AC authorities, the secrecy provision is intended to afford the providers "protection" by limiting disclosure. This is entirely contrary to IC Guideline 5.119, which has at its core:
"The primary purpose of secrecy provisions in legislation is to prohibit unauthorised disclosure of client information."
The "client" in this situation being the Aged Care recipient.
…
35.I disagree with the arguments put by the Respondent in paragraphs 38.2, substituting "care provider" for "person" is not a one for one substitution. As the Respondent calls attention to in paragraph 38.1, the information reporting responsibilities of a care provider, far exceed any such responsibilities placed on an individual person. The information provided to aged care authorities become 'documents of [the] agency' (as defined in s 4 of the FOI Act) to which they are supplied. In so doing they become subject to the objects and provisions of the FOI Act. No individual person is held to this level of scrutiny and reporting, which is so very necessary in an industry that cares for people in a fragile and vulnerable condition. The comparison fails.
The applicant also raises an argument based on s 86-9(1) of the Aged Care Act which, in effect, is that because information may be released by the Secretary under s 86-9(1) of the Aged Care Act, information of the type identified in that subsection cannot be protected information for the purposes of s 86-2. That argument is referred to in these reasons for decision as the s 86-9 Argument.
Does the Exemption under s 38(1) of the FOI Act apply?
The respondent’s case is that the 29 documents, in whole or in part, come within the operation of s 38(1) because the disclosure of the documents, or the information contained in the documents, is prohibited under s 86-2(1) of the Aged Care Act and that that section is specified in Schedule 3 of the FOI Act.
It is the case that s 86-2(1) of the Aged Care Act is specified in Schedule 3 of the FOI Act. The requirement of s 38(1)(b)(i) is therefore satisfied.
The second issue is whether disclosure of the documents or the relevant parts of the documents, or the information contained therein, is prohibited by s 86-2(1) of the Aged Care Act. The respondent argues in paragraphs 32 and 33 of the respondent’s SFIC that:
(a)the documents or the information contained in the documents is protected information as that term is defined in s 86-1 of the Aged Care Act; in particular, the information:
(i)was acquired under or for the purposes of the Aged Care Act (thereby satisfying s 86-1(a)); and
(ii)is personal information or relates to the affairs of an approved provider (thereby satisfying s 86-1(b)(i) and/or s 86-1(b)(ii)); and
(b)disclosure of the protected information is prohibited by s 86-2 because:
(i)the information is protected information as defined in s 86-1 (thereby satisfying s 86-2(1)(b)); and
(ii)the information was acquired by the person, in this case the Respondent, in the course of performing duties or exercising powers or functions under the Aged Care Act (thereby satisfying s 86-2(1)(c)).
Is the information in the documents protected information for the purposes of s 86-1 of the Aged Care Act?
Section 86-1 of the Aged Care Act has two parts, (a) and (b), both of which must be satisfied. The first requires that the information must have been acquired under or for the purposes of the Aged Care Act. The second requires that the documents contain personal information or information that relates to the affairs of an approved provider.
Were the documents acquired under or for the purposes of the Aged Care Act –
s 86-1(a)?
The respondent asserts that the information was acquired under or for the purposes of the Aged Care Act, and more specifically, it was acquired in the course of performing functions delegated pursuant to s 96-2 of the Aged Care Act for the purposes of assessing whether an approved provider complied with its responsibilities under Parts 4.1, 4.2 or 4.3 of the Aged Care Act (respondent’s SFIC paragraph 33).
Having examined the documents, the Tribunal is satisfied that the documents were acquired or created for the purposes of the Aged Care Act. The nature and content of the documents relate to the investigation, monitoring and approval of aged care providers under the Aged Care Act. As this Tribunal noted in the reasons for decision in the matter of Mullen and Chief Executive Officer, Australian Aged Care Quality Agency (Freedom of information) [2017] AATA 1805 (Mullen and AACQA) the very nature of the FOI request dictates that the documents sought are documents acquired or created by the respondent for the purposes of the Aged Care Act. The same applies in this case.
Accordingly, the Tribunal finds that the requirement in s 86-1(a) is satisfied.
Do the documents contain personal information – s 86-1(b)(i)?
The Tribunal has examined the 29 documents in question and is satisfied that insofar as exemption has been claimed based on the documents containing third party personal information, as the term personal information is defined in the Aged Care Act, that the documents do contain personal information. The Tribunal accepts that these documents, or parts of documents, fall within the terms of s 86-1(b)(i) of the Aged Care Act.
Does the information in the documents relate to the affairs of an approved provider – s 86-1(b)(ii)?
Again, as was found by the Tribunal in the matter of Mullen and AACQA, the Tribunal finds that the aged care provider in question was an approved provider for the purposes of the Aged Care Act and the Tribunal again understands that not to be in dispute.
The second element of s 86-1(b)(ii) is that the information must relate to the affairs of the approved provider. For the reasons set out in the decision in Mullen and ACCQA the Tribunal found in that case that the term “relates to the affairs” is to be given a relatively broad interpretation. The applicant purports to address the issue of the breadth of construction to be given to the term “relates to the affairs” in paragraphs 31 to 33 of the applicant’s SFIC (see paragraph 46).
Those submissions confuse the issues of information being received for the purposes of Aged Care Act (relevant to s 86-1(a)) and information relating “to the affairs of an approved provider” (relevant to s 86-1(b)(ii)). These issues are conflated by the applicant’s SFIC at paragraph 31 wherein he submits that:
Since there is no other way for the Respondent to acquire information other than in the course of their (sic) duty under the AC Act, this means the definition is limited to all information they collect. This is effectively no limitation at all, which is not the intention of the objects or guidelines
The test for information to be protected information for the purposes of s 86-1 of the Aged Care Act is two-fold. The conjunction between subsections 86-1(a) and 86-1(b) is “and” not “or”.
The submissions by the applicant in the present matter do not raise any argument or authority which would cause the Tribunal to change its view of the interpretation to be given to the phrase “relates to the affairs of an approved provider” in s 86-1(b)(ii) of the Aged Care Act as set out in paragraphs 60 to 64 of the decision in Mullen and ACCQA. As the Tribunal noted in that case at paragraph 60:
The Tribunal is of the view that that term should be given a relatively broad interpretation given the context in which it is used in this section. Firstly, the information in question will only be information which has already passed through the filter of having been acquired under or for the purposes of the Aged Care Act (s 86-1(a)). The category of information is therefore already limited. Secondly, the term must be read in the context of the purpose of the Aged Care Act as a whole and this section’s role in facilitating that broader purpose. The Aged Care Act requires approved providers to provide information to the Respondent for the purpose of the Respondent ensuring that the quality of aged care provided meets regulatory and community standards. The broader purpose is facilitated by full and proper disclosure by approved providers of all relevant information, including information that would normally be considered to be commercially sensitive or confidential. It is in the public’s interest that the Respondent has this often sensitive and confidential information. A primary purpose of confidentiality regimes is to encourage full disclosure. A restrictive interpretation of what is covered by the term “relates to the affairs” in s 86-1(b)(ii) and in therefore what is covered by the protection afforded to “protected information”, would run contrary to the broader purpose of the Aged Care Act.
On that basis the Tribunal is satisfied that the information in the documents or parts of documents in relation to which an exemption was found to exist by the IC’s Decision do “relate to the affairs” of the approved provider for the purposes of s 86-1(b)(ii) of the Aged Care Act.
Is the disclosure of the information prohibited?
While s 86-2 of the Aged Care Act is expressed in terms of a person committing an offence by disclosing information rather than speaking in terms of a disclosure being prohibited, the Tribunal accepts that if the disclosure of information or a document is an offence, then the disclosure is prohibited for the purposes of s 38(1)(a) of the FOI Act.
The question for determination is whether the 29 documents, or the relevant parts, satisfy the criteria set out in ss 86-1 and 86-2 of the Aged Care Act. As is always the case in FOI Act applications, the applicant is at somewhat of a disadvantage in that he has not seen the documents and therefore cannot comment on whether they fulfil the legal requirements for exemption from access. The question of whether the documents come within the operation of ss 86-1 and 86-2 of the Aged Care Act and s 38(1) of the FOI Act falls to the Tribunal for determination.
The Tribunal has inspected the documents and is satisfied that each of the documents and the parts of documents for which exemption from access was found and the information contained therein:
(a)was acquired under or for the purposes of the Aged Care Act; and
(b)contains information that is personal information or relates to the affairs of an approved provider.
The information in these documents is therefore protected information for the purposes of s 86-1 and s 86-2(b) of the Aged Care Act.
The Tribunal is also satisfied that because of the functions of the respondent, the nature of the documents and the information contained in the documents as well as their apparent purpose, the documents were created by or contain information that was acquired by the respondent in the course of performing duties or exercising powers or functions under the Aged Care Act. The requirements of s 86-2(1)(c) of the Aged Care Act are met. Accordingly, releasing the documents or the information contained in the documents would be an offence under s 86-2(1) of the Aged Care Act.
On the face of it, therefore, the documents fall within the exemption from access under s 38(1) of the FOI Act. That, however, is not the end of the enquiry. Consideration must also be given to whether any of the other provisions of the FOI Act or other legislation qualifies or displaces the exemption under s 38(1).
Exceptions to the exemption – s 38(2) of the FOI Act
The first exception or qualification to the exemption under s 38(1) of the FOI Act is found in s 38(2) of the FOI Act which excludes personal information about the person by whom the access is requested. From an examination of the documents that have already been provided to the applicant, it is clear that a significant number of documents falling into this category have been provided. More importantly, however, the Tribunal has reviewed the documents in relation to which exemption is claimed and is satisfied that there are no documents, or parts of documents, which have been found to be exempt from access that would come within the exception to the exemption in s 38(2) of the FOI Act.
The s 86-9 Argument
The applicant argues that certain of the documents that have been found by the IC’s Decision to be exempt from access on the basis that they are protected information under s 86-1 are not protected information because they are documents or information that would fall within the categories of information described in one or more of the subsections (a) to (m) of s 86-9(1) of the Aged Care Act. The applicant’s argument in this regard is set out in the applicant’s SFIC as follows:
36.The Respondent correctly states at paragraph 42 that "protected information" can be disseminated under s 86-3 of the Aged Care Act:
"86-3 Disclosure of Protected Information for Other Purposes
(1)The Secretary may disclose protected information:
(2)The Aged Care Complaints Commissioner may disclose protected information"
37.Beneath these headings which clearly state the words "Disclosure of protected information" and "disclose protected information", there are further alphabetical sub-headings describing the circumstances in which protected information can be released. There is no doubt that if there is a requirement to release some protected information; that release would be done under s 86-3 of the AC Act.
38.On the other hand, the Respondent incorrectly states at paragraph 42 that s 86-9 of the AC Act also permits the disclosure of protected information. This is not the case. Section 86-9 does not contain at any point the term "protected information". The word "protect" appears once at sub-section (j) but this is in regard to protecting the welfare of residents.
…
40.There is a further sub-heading, warning about not disclosing personal information unless it is names of the director I management team; (2) Information disclosed under subsection (1) must not include personal information about a person (other than the information referred to in paragraph (1)(g)).
41.So we see that information that fits the description of any of the above headings is not protected information. Furthermore, whilst the Secretary can release this information without any prompting, it is likely other agencies may prefer to have an FOI request before parting with the above information described in s 86-9 of the AC Act.
42.If the information described in s 86-9 was "protected information" (which it is not) then it would have to be released under s 86-3, negating the requirement for s 86- 9, and yet this section exists and describes information that can be made available, without any mention of the phrase 'protected information'.
The argument set out in paragraphs 38 to 42 of the applicant’s SFIC must fail. The applicant’s conclusion at paragraph 41 that any documents or information that fall into any of the categories of information in the subparagraphs of s 86-9(1) “is not protected information” seems to be based on the following logic:
(a)s 86-3 of the Aged Care Act allows the Secretary to release protected information to specified persons in specified circumstances. Section 86-3 specifically refers to protected information.
(b)s 86-9 of the Aged Care Act gives the Secretary the discretion to make described categories of information about an aged care service publicly available. Section 86-9 does not use the term protected information.
(c)Because s 86-9 does not use the term protected information, by definition therefore any of the categories of documents set out in the subsections of s 86-9(1) cannot be protected information.
That argument is non-sequitur. On the contrary, the very fact that the Secretary has to be given the specific power to release that information by s 86-9 indicates that, absent that specific power, the Secretary would be prohibited from making such information publicly available because it is protected information. The very existence of s 86-9 indicates that the information described in the subsections of s 86-9 is, or could be if the definitional requirements of s 86-1 are met, protected information.
The applicant further argues (paragraph 42 of the applicant’s SFIC) that:
If the information described in s 86-9 was “protected information” (which it is not) it would have to be released under s 86-3, negating the requirement for s 86-9
Again, that argument is a non-sequitur. Sections 86-3 and 86-9 are doing different things. Section 86-3 is permitting (not requiring as suggested by the applicant) the Secretary to disclose protected information, which, without s 86-3 would be an offence under s 86-2(1), in prescribed circumstances to identified persons. Section 86-9 is, as noted above, allowing the Secretary to make public certain categories of information that could not otherwise be disclosed because it is protected information.
For the reasons set out above the Tribunal rejects the argument raised by the applicant to the effect that documents and information falling within the categories set out in s 86-9(1) are, by definition, not protected information.
The operation of s 55K(2) of the FOI Act
The applicant also re-runs an argument that he ran in the matter of Mullen and ACCQA to the effect that the Tribunal has the power to step into the shoes of the IC and that the IC should have, under s 55K(2) of the FOI Act, exercised the power that the Secretary is given under s 86-3 to allow access to the information for which exemption is claimed. The applicant’s argument is set out in the applicant’s SFIC as follows:
49.Though I contend that the above mentioned did not need to be released under s86-3 as I do not believe it is protected information, it is important to note that the decision maker is able and willing to operate using this section if necessary.
50.While the Respondent's SFIC at paragraph 43 correctly points out that the statute created by Justice Branson J in Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170 means that the normal process for an FOI request under the FOI and AC Acts does not allow the use of s 86-3 of the AC Act. I contend that the litany of questionable behaviour that have come to light during the IC Review (outlined above) cumulatively amount to a cogent reason to act outside this statute and invoke s 55K(2) of the FOI Act, thereby access the right to perform the functions, and exercise the powers, of the person who made the IC reviewable decision.
51.I contend that having established this cogent reason and invoked s 55K(2) of the FOI Act, the Tribunal should now consider whether or not it may be necessary to exercise the powers of the decision maker under s 86-3 of the AC Act, to grant access to information that will inform me about what occurred to leave my systematic understaffing complaint so woefully addressed all this time.
52.I contend that the Respondent's statement at paragraph 44 hints at the probability that the information still being withheld in this matter has no further personal information about me, but may well be informative about the understaffing issue I seek information about.
53.I ask that the Tribunal assess the remaining information in light of the refined definition of protected information I have produced by combining FOI Act Objects, IC Guidelines and s 86-9 of the AC Act definition of what is not protected, to see if the remaining information can be released on that basis.
54.If there is still information remaining after the above process, the use of s 86-3 of the AC Act could be considered.
…
62.The unabated understaffing of an Aged Care Facility is at the heart of my information request. I ask that the Tribunal consider the cogent reasons I have put forward for using the powers granted under s 55K(2) of the FOI Act to release information that may be considered 'protected information' if it is helpful in uncovering how and why this understaffing practice is allowed to continue. This would be in keeping with the intention of Object 3(2)(b) of the FOI Act, as it may have the effect of" increasing scrutiny, discussion, comment and review of the Government's activities", particularly surrounding the processing of my 2012 complaint.
In Mullen and ACCQA the applicant expressed his argument as follows (at [75]):
30.The Respondent’s SFIC document paragraph 21 revisits the unfortunate judgement of Branson J in Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170 (7 March 2005).
30.1.That judgement does not take into account the operation of s55K (2):
55K Decision on IC review—decision of Information Commissioner.
(2)For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision.
30.2.That is to say that when the information Commissioner makes a decision to set aside the original decision and substitute his own, as has happened in this case, he has the ability to use all the powers available under the Aged Care Act, including s86-3.
31.If there remains any doubt about whether or not the information I seek is ‘protected information’, after scrutinising against s86-9, the Tribunal should use the facility in the FOI Act to set aside the decision under s55K(1)(c) and apply s86-3 of the Aged Care Act to release the information in the public interest, given the nature of the offence that was, or is, being perpetrated by systematically understaffing the Aged Care Facility.
32.The judgement of Branson J in Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170 (7 March 2005) appears to go against the object of the FOI Act at 3A.
That argument was rejected for the reasons set out in paragraphs 74 to 83 of the decision in Mullen and ACCQA. For the same reasons that the argument was rejected in Mullen and ACCQA, the Tribunal rejects the argument in this application.
DECISION
The Tribunal is satisfied that:
(a)the documents contain protected information for the purposes of s 86-1 of the Aged Care Act in that the information was
(i)acquired for the purposes of the Aged Care Act; and
(ii)is personal information or is information that relates to the affairs of an approved provider;
(b)the information was acquired in the course of the respondent performing duties or exercising powers or functions under the Aged Care Act and that the disclosure of the information is prohibited under s 86-2 of the Aged Care Act;
(c)disclosure of the information in the documents is prohibited under s 86-2(1) of the Aged Care Act;
(d)section 86-2(1) of the Aged Care Act is specified in Schedule 3 of the FOI Act; and
(e)therefore the documents come within the exemption under s 38 of the FOI Act.
The Tribunal therefore affirms the decision under review.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of
.......[sgd]..............................................................
Administrative Assistant - Legal
Dated: 1 December 2017
Date of hearing: 6 November 2017 Applicant: In person Representative for the Respondent: Ms A Ladhams Solicitors for the Respondent: Australian Government Solicitor
Doc No.[1]
Date
No of pages
Page no in bundle of docs
Author
Addressee
Description of document
Decision
Exemption
Description of exempt parts of documents
5
12.10.2012
2
7-8
Not applicable
Not applicable
File note: meeting - review of care recipient profile and service profile
Partially exempt
s 38(1)
p 8: final paragraph
15
26.10.2012
2
22-23
Joanna Truslove
Not applicable
File note: outgoing call to approved provider
Partially exempt
s 38(1)
p 22: 1st paragraph: identity and position of call recipient
p 22: 6th–8th paragraphs
p 22: 9th paragraph: words between ‘CRO’ and ‘acknowledged’
p 23: 2nd paragraph: 1st & 3rd sentences
p 23: 3rd paragraph: words between ‘that’ and ‘would’ and between ‘understand’ and ‘may’
17
29.10.2012
1
25
Joanna Truslove
Not applicable
File note: meeting between officer and delegate
Partially exempt
s 38(1)
p 25: final word on 2nd line and whole of 3rd line
20
29.10.2012
1
28
Joanna Truslove
Not applicable
File note: outgoing call to approved provider
Exempt in full
s 38(1)
p 28: paragraphs 1-4, 6, 8: identity of call recipient and associated information that may enable call recipient to be identified.
p 28: paragraph 4: 3rd sentence
23
30.10.2012
5
32-36
Not applicable
Not applicable
Conciliation meeting plan
Partially exempt
s 38(1)
p 34: paragraph and heading above table
p 36: all text
24
30.10.2012
7
37-43
Not applicable
Not applicable
Investigation matrix
Partially exempt
s 38(1)
p 39: 2nd column of table: 3rd – 6th paragraphs; 3rd column of table: 2nd line, 6th-9th lines
p 40: line following subheading “Interview”; all lines following “Mrs Claire Field”
p 41: all lines after line 12
p 42: all
25
31.10.2012
1
44
Joanna Truslove
Not applicable
File note: outgoing call to approved provider
Exempt in full
s 38(1)
p 44: all words which do or could disclose identity of call recipient; 5th paragraph: final sentence.
31
31.10.2012
2
51
Joanna Truslove
Approved provider
File note re email to approved provider and attached email
Partially exempt
s 38(1)
p 50: words that disclose identity of email recipient
p 51: words that disclose identity of email recipient and email address
32
29.10.12
2
52-53
Joanna Truslove
Bansley Pty Ltd
Attachment to email: letter to approved provider
Partially exempt
s 38(1)
p 52: name of addressee of letter and names of representatives of approved provider
34
02.11.2012
5
55-59
Joanna Truslove & Christine Shepherd
Not applicable
Conciliation meeting report
Partially exempt
s 38(1)
p 56:final paragraph of section under 2nd heading: words after “approved provider” in final sentence
p 57: names, positions and other information which could identify representatives of the approved provider.
p 58 & 59: names and other information which could identify representatives of the approved provider
38
13.11.2012
1
66
Not applicable
Not applicable
File note: outgoing call to approved provider
Partially exempt
s 38(1)
p 66: names and other information which does or could identify employees of approved provider
47
22.10.2012
10
78-87
Shirley Rowney
Not applicable
Aged Care Standards and Accreditation Agency report
Exempt in full
s 38(1)
p 78-87: all
49
26.11.2012
2
89-90
Not applicable
Commonwealth Department of Health and Ageing
Registered post receive from service
Partially exempt
s 47F
p 90, signatures
51
14.08.2012
1
92
Not applicable
Not applicable
File note: incoming call from service provider
Exempt in full
s 38(1)
p 92: all
52
16.08.2012
3
93-95
Not applicable
File note re email from service provider and attached email
Exempt in full
s 38(1)
p 93-95: all
55
27.08.2012
1
101
Not known
Not applicable
File note: referral decision
Partially exempt
s 38(1)
p 101: second paragraph: 3rd sentence
56
02.12.2013
2
102-103
Helen Grinbergs
Vivienne Burnham & Carrie Sutcliffe
File note: telephone conversation between state manager and Mr John Mullen
Partially exempt
s 47E(d)
p 103: mobile phone number
58
21.05.2014
3
105-107
Commonwealth Ombudsman
Department of Social Services (DSS)
Email from Ombudsman to DSS: section 8 notice
Partially exempt
s 47E(d)
p 105: email addresses
p 107: phone numbers
59
22.05.2014
4
108-111
Christelle Stone
Vivienne Burnham
Internal emails re proposed approach to Ombudsman request
Partially exempt
s 47E(d)
p 109: email addresses
p 110: telephone numbers
60
26.05.2015
4
112-115
Christelle Stone
Kirralee Harvey
Internal emails re Australian Aged Care Quality Agency (Quality Agency) elements of Ombudsman request
Partially exempt
s 47E(d)
p 112: email addresses of third party agency
p 113: email addresses
p 114: telephone numbers
61
27.05.2014
4
116-119
Christelle Stone
John Coram
Internal emails approving email to be sent to Ombudsman
Partially exempt
s 47E(d)
p 117: email address of third party agency
p 118: email addresses of third party agency
p 119: phone numbers
62
28.05.2014
4
120-123
Christelle Stone
Amy Warland
Internal emails with Quality Agency contact details
Partially exempt
s 47E(d)
p 121: email addresses of third party agency
p 122: phone numbers
63
28.05.2014
3
124-146
Christelle Stone
Vivienne Burnham
Internal emails regarding part of Ombudsman request being directed to Quality Agency
Partially exempt
s 47E(d)
p 124: email addresses of third party agency
p 125: email addresses of third party agency
p 126; telephone numbers
67
undated
49
134-182
Ian Scott
Sandra Koller
Attachment to Departmental Minute: Draft response to Ombudsman with attached documents
Partially exempt
s 38(1) & s 47E(d)
p 140-143: all
p 146: “Details” field: 3rd sentence
p 165: mobile phone number (s 47E(d))
68
05.06.2014
3
183-185
Helen Grinbergs
Vivienne Burnham & Andrew Norris
Internal email
Partially exempt
s 47E(d)
p 183 & 184: mobile phone numbers
70
16.06.2014
4
187-191
Amy Warland
DSS
Internal email re extension
Partially exempt
s 47E(d)
p 187 & 188: email addresses of third party agency
p 189: phone numbers
71
16.06.2014
4
191-194
Nicolle Sullivan
DSS
Internal email re extension
Partially exempt
s 47E(d)
p 191, 192 & 193: email addresses of third party agency
p 194: phone numbers
74
17.06.2014
1
199
Maree Kinkade
Andrew Norris
Internal email re discussion with intake staff
Partially exempt
s 38(1)
p 199: second paragraph of second email in chain: final sentence from word following “sent” to end of sentence.
75
20.06.2014
1
200
Maree Kinkade
DSS
Internal email attaching signed response to Ombudsman
Partially exempt
s 47E(d)
p 200: email address of third party agency
77
03.09.2014
2
206-207
Amy Warland
DSS
Internal email forwarding further questions from the Ombudsman
Partially exempt
s 47E(d)
p 206: email addresses of third party agency
p 207: phone numbers
78
04.09.2014
3
208-210
Lisa Gruber
DSS
Internal email forwarding email from Ombudsman extending due date and attaching memo
Partially exempt
s 47E(d)
p 208: email addresses and telephone numbers of third party agency
p 209: email addresses of third party agency
p 210: telephone numbers
79
07.08.2012
1
211
Approved provider
Approved provider memo
Exempt in full
s 38(1)
p 211: all
80
10.09.2014
3
212-214
Maree Kinkade
Andrew Norris
Internal email attaching copy of memo
Partially exempt
s 38(1)
p 214: all
82
undated
2
216-217
Not applicable
Not applicable
Draft response to part two of the Ombudsman’s request
Partially exempt
s 38(1)
p 216: 1st paragraph and dot points under line in middle of page
p 217: final sentence
84
10.10.2014
3
220-222
Maree Kinkade
DSS
Internal email forwarding response sent to Ombudsman
Partially exempt
s 47E(d)
p 220 & 221: email addresses of third party agency
p 222: phone numbers
85
08.10.2014
4
223-226
James Christian
Sandra Koller
Response to Ombudsman
Partially exempt
s 38(1)
p 224: final paragraph and dot points
p 225: dot points in first paragraph.
p 226: final sentence
87
04.02.2015
3
228-230
Maree Kinkade
David Laffan
Internal email with further questions from Ombudsman
Partially exempt
s 47E(d)
s 38(1)
p 228: email addresses of third party agency (s 47E(d))
p 229: email addresses and phone numbers of third party agency (s 47E(d))
p 229: final email in chain: whole of paragraph numbered “2” except for first sentence.
88
04.02.2015
3
231-233
Nicolle Sullivan
Maree Kinkade
Internal email forwarding response from Ombudsman re due date
Partially exempt
s 38(1) & s 47E(d)
p 231: email addresses and phone numbers of third party agency (s 47E(d))
p 232: email addresses and phone numbers of third party agency (s 47E(d))
p 232: final email in chain: whole of paragraph numbered “2” except for 1st sentence and 2nd sentence up to word “that”. (s 38(1))
p 233: telephone number (s 47E(d))
89
04.02.2015
3
234-236
Jamie Droney
Marie Kinkade
Internal email
Partially exempt
s 38(1) & s 47E(d)
p 234: email addresses of third party agency (s 47E(d))
p 235: email addresses of third party agency (s 47E(d))
p 235: final email in chain: whole of paragraph numbered “2” except for 1st sentence and 2nd sentence up to word “that”. (s 38(1))
p 236: phone numbers (s 47E(d))
90
09.02.2015
4
237-240
Maree Kinkade
Andrew Norris
Internal email attaching draft response to Ombudsman
Partially exempt
s 38(1) & s 47E(d)
p 237: 2nd email in chain: 2nd paragraph: from word following “that” in 3rd line to the end of the paragraph (s 38(1))
p 239: email addresses and phone numbers of third party agency (s 47E(d))
p 239: final email in chain: whole of paragraph numbered “2” except for 1st sentence and 2nd sentence up to word “that”. (s 38(1))
91
25.02.2015
3
241-243
Maree Kinkade
DSS
Internal email attaching response to additional questions asked by Ombudsman
Partially exempt
s 38(1) & s 47E(d)
p 241: email addresses of third party agency (s 47E(d))
p 242: email addresses and telephone numbers of third party agency (s 47E(d))
p 242: final email in chain: whole of paragraph numbered “2” except for 1st sentence and 2nd sentence up to word “that”. (s 38(1))
92
24.02.2015
3
244-246
James Christian
Sandra Koller
Response to additional questions asked by the Ombudsman
Partially exempt
s 38(1)
p 245: under heading “Question 2”, from word following “that” in 3rd line to end of paragraph, and words under heading “Response” in following paragraph
93
25.05.2015
3
247-249
Nicolle Sullivan
Maree Kinkade
Internal email forwarding additional questions from the Ombudsman
Partially exempt
s 47E(d)
p 247: email addresses of third party agency:
p 249: contact details of employee of third party agency
94
25.05.2015
4
250-253
Maree Kinkade
Jamie Droney
Internal email
Partially exempt
s 47E(d)
p 250 & 251: email addresses of third party agency
p 252: contact details of employee of third party agency
95
25.05.2015
4
254-257
Maree Kinkade
Vivienne Burnham
Internal email
Partially exempt
s 47E(d)
p 255: email addresses of third party agency
p 257: contact details of employee of third party agency
96
04.06.2015
5
258-262
Kelly Russell
Maree Kinkade
Internal email attaching answers to Ombudsman questions
Partially exempt
s 47E(d)
p 260: email addresses of third party agency
p 262: contact details of employee of third party agency
101
16.06.2015
4
276-279
Maree Kinkade
Nicolle Sullivan
Internal email attaching response to Ombudsman questions
Partially exempt
s 47E(d)
p 276 & 277: email addresses of third party agency
p 279: contact details of employee of third party agency
106
various
4
286-289
various
various
Attachments 1.2-1.5 to letter
Exempt in full
s 38(1)
p 286-289: all
108
14.08.2012
1
292
Not applicable
Not applicable
Attachment 1.8 to letter
Partially exempt
s 38(1)
p 292: 3rd sentence in “Details” field
[1] Document number refers to the number used in the Schedule of Documents at T22, p115-123
2
3
0