Mullen and Aged Care Complaints Commissioner (Freedom of information)

This matter concerned an application for review of a decision by the Australian Information Commissioner (IC) regarding a Freedom of Information (FOI) request. The applicant sought access to various documents related to a complaint made to the Aged Care Complaints Scheme, the Scheme's response to an investigation by the Commonwealth Ombudsman, and interactions between the Aged Care Standards and Accreditation Agency and an approved provider. The IC had determined that certain documents were exempt from production under the FOI Act.

The primary legal issue before the Tribunal was whether the 29 documents, or parts thereof, identified as exempt by the IC, fell within the scope of section 38(1) of the FOI Act. This required determining if the information contained within these documents constituted "protected information" under section 86-1 of the Aged Care Act 1997, which defines protected information as information obtained for the purposes of that Act that is either personal information or information relating to the affairs of an approved provider.

The Tribunal considered the respondent's contention that the documents contained protected information. The respondent argued that the information was obtained under specific parts of the Aged Care Act in the course of delegated functions. The Tribunal noted that "personal information" was defined by reference to the Privacy Act 1988. Crucially, the Tribunal examined the phrase "relates to the affairs of an approved provider," which was not judicially defined in the Aged Care Act. The respondent submitted this phrase should be interpreted broadly to encompass information connected to an approved provider's obligations, business, or activities. The Tribunal considered this interpretation consistent with the text, context, and purpose of the Aged Care Act, which requires providers to supply information and offers some protection against disclosure. The Tribunal also drew an analogy to the construction of a similar phrase in the Health Insurance Act 1973, as considered in *Walker v Secretary, Department of Health and Ageing* [2016] FCA 233, which indicated that "affairs" broadly includes business or professional activities.

The Tribunal affirmed the IC's decision, finding that the documents contained protected information under the Aged Care Act and were therefore exempt from disclosure under section 38(1) of the FOI Act.