Mullen and Chief Executive Officer, Australian Aged Care Quality Agency (Freedom of information)
[2017] AATA 1805
•19 October 2017
Mullen and Chief Executive Officer, Australian Aged Care Quality Agency (Freedom of information) [2017] AATA 1805 (19 October 2017)
Division:GENERAL DIVISION
File Number: 2017/1091
Re:John Mullen
APPLICANT
AndChief Executive Officer, Australian Aged Care Quality Agency
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Deputy President Stephen BoyleDate:19 October 2017
Place:Perth
The decision under review is affirmed.
......................[sgd]..................................................
Deputy President Dr Christopher Kendall
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)
Aged Care Act 1997 – ss 86-1, 86-2, 86-3, 86-9
Freedom of Information Act 1982 – ss 11(1), 16(1), 24, 38(1), 38(2), 38(1A), 47F, 55K, 55K(2), 57A(1)(a), 93A(2)
Privacy Act 1988 – s 6
CASES
Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170
Walker v Secretary, Department of Health and Ageing [2016] FCA 233
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
19 October 2017
THE APPLICATION
1. This is an application for the review of a decision of the Australian Information Commissioner (the “IC”) made on 1 February 2017 (the “Decision”). The Decision was made under s 55K of the Freedom of Information Act 1982 (the “FOI Act”). This application is made pursuant to s 57A(1)(a) of the FOI Act.
BACKGROUND
2. The facts giving rise to this application are, in essence, not disputed. Nonetheless, they are somewhat unusual and need to be understood to address an issue concerning the scope of the Decision and therefore the matters to be determined by the Tribunal. The Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions (Exhibit A1) makes extensive reference to an FOI Act request made by the Applicant to the Department of Social Services (the “DSS”) at around the same time (August 2015) that the Applicant made the FOI Act request to the Commonwealth Ombudsman. Each party also made submissions at the hearing in relation to that FOI Act request to the DSS and its standing in relation to this application.
3. The relevant facts are conveniently set out in the Respondent’s Statement of Facts, Issues and Contentions dated 26 June 2017 (Exhibit R3) and the Respondent’s Supplementary Contentions dated 22 September 2017 (Exhibit R4). The Tribunal notes, relevantly, as follows in that regard.
4. On 12 August 2015, the Applicant made a freedom of information request (an “FOI request”) to the Commonwealth Ombudsman seeking access to the following documents in relation to an investigation that the Commonwealth Ombudsman had undertaken in relation to a complaint the Applicant made about a residential aged care facility in which his mother resided (T3 at 10):
(1)Evidence of Training, Qualifications and Experience of the Investigators specifically relevant to the field of Aged Care ...
(2)A full log of all activities in this matter (including internal to the office of the Ombudsman); including records of all correspondence (other than to/from me), conversations (including by phone) and meetings, with all notes made accompanying these activities and minutes of any meetings.
(3) Any background information gathered to help with this matter.
(4) Any analysis carried out or ‘working notes’.
(5)Any Advice obtained by the Ombudsman and/or parties the Ombudsman interacted with.
(6) Any “recommendations” made by the Ombudsman related to this matter.
(7)Any other information not specified above that has any relation to my concerns.
5. On 14 August 2015, the Applicant made an FOI request to DSS. DSS transferred parts 3 and 4 of the request to the Respondent. The Respondent referred to this request as “15_06”.
6. On or about 20 August 2015, the Commonwealth Ombudsman transferred the FOI request to the Respondent pursuant to s 16(1) of the FOI Act, having identified 10 documents within the scope of the FOI request that originated from the Respondent (T4 at 11 and T7 at 17). The Respondent referred to this request as “15_08”. The Respondent treated the whole of this request as having been transferred to it and conducted its own searches for documents within the scope of the request (refer to the affidavit of Maria Theoharous) (Exhibit R5).
7. On 12 October 2015, a delegate of the Respondent made a decision in relation to both 15_06 and 15_08, identifying 13 documents within the scope of the FOI request, granting access in part to 11 documents and deciding that 2 documents were exempt in full. The exemption claims that were made were under s 47F of the FOI Act (personal privacy) and s 38 of the FOI Act (secrecy provisions) read with s 86-2(1) of the Aged Care Act 1997 (the “Aged Care Act”) (T14 at 39).
8. The decision in relation to 15_06:
(a)refused access to the documents within part 3 of the request pursuant to s 24 of the FOI Act; and
(b)noted that the documents within part 4 of the request had been provided as part of 15_08.
9. The decision in relation to 15_08 mistakenly referred to ‘part 4’ in one section of the decision. There was no part 4 to FOI request 15_08. The only part 4 was in request 15_06.
10. On 10 December 2015, the Applicant made a request to the IC to review both decisions made by the Respondent (T18 at 56). In his email to the IC, the Applicant said:
For the purpose of our communication I will treat 15_06 as dealing with part 3 of my request to the DSS.
For the purpose of our communication I will treat 15_08 as dealing with part 4 of my request to DSS, plus 10 documents from the CO.
11. On 1 February 2017, the IC made the Decision (T40 at 178).
12. On 27 February 2017, the Applicant applied to the Tribunal for review of the Decision (T1 at 1).
13. The IC referred to the review of the decision in 15_08 as “MR15/00418” (T40 at 178). It appears from the supplementary T-Documents filed by the Applicant that the Applicant discussed the scope of his request in MR15/00418 with the IC. By email dated 18 March 2016 (Ts-017), the IC wrote to the Applicant acknowledging the Applicant’s advice that the IC review is confined the to review of the Respondent’s decision in relation to Part 4 of the request originally made to DSS. The IC then stated:
I note your advice that you are specifically seeking review of the decision of AACQA of 12 October 2015 in relation to which AACQA initially set out in its written reasons for FOI request that was transferred to AACQA from the Commonwealth Ombudsman, but then proceeded to deal with ‘Part 4' of your request under the subheading ‘Decision’.
14. The IC made a decision in relation to MR15/00417 in which he reviewed part 3 of the request 15_06 transferred from DSS.
15. The IC’s decision in relation to MR15/00418, in which he reviewed the decision in 15_08, does not refer to part 4 of request 15_06 transferred from DSS. Nor does the IC refer to the correspondence between the Applicant and the IC in relation to the scope of the review request.
16. The Decision (T40 at 179) sets out the scope of the IC’s review in the following terms:
Scope of IC Review
2.The applicant was the complainant in a Commonwealth Ombudsman matter relating to an issue that he had raised through the then Aged Care Complaints Scheme in 2012.
3.On 12 August 2015, the applicant applied to the Commonwealth Ombudsman for access to documents concerning the Ombudsman’s investigation of the complaint.
4.On 20 August 2015, the Commonwealth Ombudsman transferred the request to the Agency (the respondent).
5. On 12 October 2015, the Agency advised the applicant that it had identified 13 documents within the scope of the request. The Agency refused the applicant access to 11 documents in part and two documents in full (the documents). In making its decision, the Agency relied on the personal privacy exemption (s 47F) and the secrecy provisions exemption (s 38) of the FOI Act.
6. On 10 December 2015, the applicant sought IC review of the Agency’s decision under s 54L of the FOI Act.
7. On 4 July 2016, the Agency submitted that staff names and titles are exempt under s 47E(d) of the FOI Act. The Agency said that disclosing staff details would facilitate direct contact by the applicant in future. The Agency contends that contact outside the streamlined complaints process would have a substantial adverse effect on the efficient conduct of the Agency’s operations.
…
17. The IC Decision then went on to outline what he had considered and what he had had regard to in making the Decision.
18. The Tribunal attaches as “Annexure 1” to this decision the annexure from the Respondent’s Supplementary Contentions which conveniently sets out the substance and history of the two FOI Act requests made by the Applicant. This annexure was referred to by both parties in the hearing and the Tribunal accepts its accuracy.
19. The Tribunal finds that, for whatever reason, the IC did not make any decision under s 55K of the FOI Act or otherwise specifically addressing part 4 of request 15_06 – being the request transferred from DSS.
20. Section 57A(1) of the FOI Act is in the following terms:
(1)An application may be made to the Tribunal for review of the following decisions:
(a)a decision of the Information Commissioner under section 55K on an IC review;
…
21. The Tribunal’s jurisdiction is limited to reviewing the decision made by the IC under s 55K of the FOI Act. As the Decision dealt only with request 15_08, the request made to the Commonwealth Ombudsman, the Tribunal has no jurisdiction to consider anything other than the FOI Act request dealt with in the Decision.
22. While it is not relevant to the issues of the Tribunal’s jurisdiction and the matters to be determined by the Tribunal in this application, the Tribunal does note that the issue of part 4 of request 15_06 and the IC’s failure to specifically address that in the Decision may be academic in that the documents sought by part 4 of that request were treated by the Respondent as being within the scope of request 15_08. Relevantly, Ms Theoharous, in her affidavit sworn 31 August 2017 (R5), states in paragraph 7 that:
I identified more documents within the scope of FOI request 15_08 than I identified in relation to part 4 of FOI request 15_06. Further, every document that I identified as within the scope of part 4 of FOI request 15_06 was also within the scope of FOI request 15_08. I am confident that there are no documents within part 4 of FOI request 15_06 that were not also considered to be part of FOI request 15_08.
The IC’s Decision
23. The Decision of the IC (T40 page 178) was as follows:
1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Australian Aged Care Quality Agency (the Agency) of 12 October 2015. I substitute my decision that:
·The material that the Agency found to be exempt under s 47F of the FOI Act is not exempt;
·The applicant’s personal information that the agency (sic) found to be exempt under s 38 of the FOI Act is not exempt, and
·The remaining material that the Agency found to be exempt under s 38 is exempt under this provision.
…
24. The Agency’s (Respondent’s) decision to which the Decision relates is set out in the Respondent’s letter of 12 October 2015 (T14). Attachment A (Schedule of documents) to that letter (T14 pages 43 and 44) sets out the Respondent’s decision on access to 13 documents and the reasons for providing partial access to 11 documents and refusal of any access to two documents. That attachment A is “Annexure 2” to this Tribunal’s decision. In making its decision of 12 October 2015 the Respondent relied on s 47F of the FOI Act and s 38 of the FOI Act read in conjunction with ss 86-1 and 86-2 of the Aged Care Act.
25. The effect of the Decision was that all of the exemptions claimed by the Respondent under s 47F of the FOI Act were rejected and the claims for exemption under s 38 of the FOI Act were rejected insofar as they related to the Applicant’s personal information. This, therefore, left the only documents in contention being those that were held by the IC to be exempt under s 38 of the FOI Act to the extent that those documents do not contain the Applicant’s personal information.
26. Attached as “Annexure 3” to this decision is a list and description of the five documents in relation to which the IC decided that the Respondent had legitimate claims for exemptions to apply. This list was Exhibit R6. It is these documents, with some minor changes described in the following paragraph, that are the subject of this application.
27. The minor changes referred to in the preceding paragraph relate to document 10 in the list in Annexure 3, the Assessment workbook – internal quality assessors. At the beginning of the hearing counsel for the Respondent handed up copies of 5 pages from document 10 which had parts redacted. Those 5 pages, admitted into evidence as Exhibit R9, were provided to the Applicant. Counsel for the Respondent explained the position as follows:
When the Information Commissioner made his decision in relation to this matter, the Information Commissioner made a decision that the section 38 exemptions claimed by the respondent, in so far as they related to personal information of Mr Mullen were not upheld and those documents could be provided to Mr Mullen.
Now, both of these documents contain what the respondent considers to be mixed personal information. Pursuant to the FOI Guidelines, section 38(2), which allows documents containing personal information not to be exempt under section 38(1), says that section 38(2) does not apply to mixed personal information. So, that is why these two documents have not been provided previously. But, in preparing this matter for hearing, the respondent has carefully looked at all the documents again and we found a way to redact parts of these pages so that the personal information that relates only to Mr Mullen can be provided.
So, Mr Mullen has now been given a copy of these pages and to the extent that the copies that you have before you show – or, to the extent that the copies you have before you are not redacted, the respondent no longer claims exemptions over those parts of the document
(Transcript at 2)
28. The documents comprising Exhibit R9 confirm counsel’s explanation.
The Issues
29. 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.
30. In addition, although the argument is not directly spelt out in the Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions (A1), the Tribunal understands the Applicant to argue that the Tribunal should, presumably under s 43(1)(b) or s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”), vary or set aside the 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.
31. The Tribunal’s understanding of the Applicant’s argument set out in the preceding paragraph arises from paragraphs 30 to 32 of the Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions (A1) and from the oral submissions made by the Applicant at the hearing.
The Legislation
32. 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.
33. Section 38(1) of the FOI Act further provides an exemption for documents that are subject to secrecy provisions of enactments. That subsection relevantly states:
(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.
…
34. Section 38(2) of the FOI Act reads 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.
35. 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.
36. ‘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.
37. ‘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 in under s 6 as follows:
"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.
38. 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.
39. 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.
40. 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.
41. 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;
42. 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.
43. 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.
44. “Secretary” is defined in Schedule 1 – Dictionary, of the Aged Care Act as “the Secretary of the Department”.
45. 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.
46. 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
47. The primary matter for determination by the Tribunal is whether the 5 documents found by the IC to be exempt from production under the FOI Act (described in Annexure 3) are documents that come within the scope of s 38(1) of the FOI Act.
48. The Respondent states its case in paragraph 17 of its Statement of Facts, Issues and Contentions as follows:
17.The documents over which the respondent claims an exemption under s 38(1) of the FOI Act are documents that contain protected information within the meaning of s 86-2(1) of the Aged Care Act. The information is protected information on the basis that:
17.1.it 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, and
17.2.it relates to the affairs of an approved provider and / or is personal information.
18.The documents are therefore exempt documents pursuant to s 38(1) of the FOI Act.
49. The Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions (A1) is a little less clear. A significant portion of the Applicant’s reply deals with the issue of the scope of the two FOI Act requests made by the Applicant – one to the Commonwealth Ombudsman and one to the DSS – and the fact that part 4 of the FOI Act request made to the DSS (15_06) has not been dealt with or has not been adequately dealt with. While the Tribunal understands the Applicant’s frustration with the apparent failure of the IC to deal with part 4 of his request 15_06, as noted above, on the information before the Tribunal, in particular the affidavit of Ms Theoharous (R5), the substance of that request has been dealt with and the documents identified in that part 4 have either been provided to the Applicant or are amongst the five documents the subject of this application.
50. Further, and in any event, as noted above, the jurisdiction of this Tribunal is limited to a review of the decision made by the IC under s 55K of the FOI Act. This Tribunal has no jurisdiction to delve into why the IC may not have specifically addressed an FOI Act request made to the DSS. It can only deal with the “decision of the Information Commissioner under s 55K on an IC review” (s 57A(1)(a) of the FOI Act). The jurisdiction and function of this Tribunal is limited to determining whether an exemption from production under the FOI Act does apply to each of the five documents identified in Annexure 3 as found by the IC in the Decision.
Does the Exemption under s 38(1) of the FOI Act apply?
51. The Respondent’s case is singular. It says that the five documents 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.
52. Dealing firstly with the second element, 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.
53. The other issue is whether disclosure of these documents, or the information contained in the documents, is prohibited by s 86-2(1) of the Aged Care Act. In that regard the Respondent says 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?
54. 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)?
55. 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.
56. Having examined the documents, the Tribunal is satisfied that the documents were acquired, or in this case more accurately 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. Further, the nature of the FOI request in this case dictates that the documents sought, and therefore the subject of the claim for exemption from production, are documents acquired or created for the purposes of the Aged Care Act.
57. 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)?
58. Having examined the documents in question, the Tribunal is satisfied that a significant proportion of the documents contain personal information as that term is defined in the Aged Care Act. Insofar as the personal information related to the Applicant that information has now been provided to the Applicant with the handing over of the redacted documents at the commencement of the hearing (Exhibit R9). Insofar as the documents contain personal information of persons other than the Applicant, the Tribunal accepts that they 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)?
59. It is apparent from the information before the Tribunal that the aged care provider in question was, at the material times, an approved provider as that term is defined in Schedule 1 – Dictionary to the Aged Care Act. The Tribunal understands that not to be disputed by the Applicant and finds that that is the case.
60. The second requirement of s 86-1(b)(ii) is that the information must relate to the affairs of the approved provider. The term “relates to the affairs” is not defined in the Aged Care Act. 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.
61. The Respondent also cited judicial consideration of a similar term in other legislation in paragraph 31.2 of the Respondent’s Supplementary Contentions dated 22 September 2017 (R6). That submission was as follows:
31.2.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:
31.2.1.‘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])
31.2.2.the ordinary meaning of ‘the affairs’ is broad (Walker at [43]).
62. The paragraphs from Walker v Secretary, Department of Health and Ageing [2016] FCA 233 (Walker) to which the Respondent referred in paragraphs 31.2.1 and 31.2.2 of their Supplementary Contentions (R6) above, are as follows:
[42]It is convenient to focus first on the significance of the words “the affairs of another person”. It may be accepted that the reference to “the affairs of” provides some degree of limitation to an alternative hypothetical formulation of “information with respect to another person”. That is not to say, however, that the limitation is as broad as Dr Walker contends, such that the relevant information is confined to private or personal information and does not extend to professional or business information.
[43]The ordinary meaning of the words “the affairs” of a person is broad, as is reflected in leading dictionary definitions of the word “affair”. The Macquarie Dictionary (5th ed) provides the following definitions:
“1.anything done or to be done; that which requires action or effort; business; concern: an affair of great moment; the affairs of state.
2.(plural) matters of interest or concern; particular doings or interests: put your affairs in order.”
The relevant definitions in The New Shorter Oxford English Dictionary (1993) are:
“1What one has to do; business; a concern; a matter …
2spec. In pl. Ordinary pursuits of life; business dealings; public matters.”
63. The Tribunal also takes note of the following paragraphs of the Walker decision which have relevance to this application:
[48]These few examples illustrate the wide nature and range of the information which is likely to be acquired by Departmental officers in administering this legislation. The relevant information may relate to medical practitioners who participate in the Medicare Benefits Scheme, patients, their families, and hospitals. Some of the information might be publicly available but much of it will not. Some of the information will be of a highly sensitive and confidential nature, such as the specific professional medical services obtained by individual patients. Other information may not. Necessarily, however, the information will extend well beyond personal information in the form of a person's name and address.
[49]It is perhaps unsurprising that, faced with the need to protect the sensitivity of much of the information which is acquired by the Department in administering the legislation, the Parliament has chosen to insert a provision such as s 130 and to structure it as it is. In broad terms, that structure involves the imposition on Departmental officers of an obligation of secrecy with respect to information of the kind described in s 130(1). That obligation attaches to both the recording of relevant information by such an officer as well as its disclosure. The obligation operates while the person is an officer of the Department and afterwards. As noted above, it is a criminal offence to breach the obligation imposed by s 130(1).
64. As was the case with the Department of Health and Ageing in the Walker case, the wide nature and range of sensitive information which is likely to be acquired by the Respondent in administering and discharging its obligations under the Aged Care Act necessitates a comprehensive confidentiality regime and a broad interpretation of what is meant by the term “relates to the affairs”.
65. On that basis the Tribunal is satisfied that the information in the documents “relates 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?
66. 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.
67. The question for determination is whether the five documents 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 production. 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.
68. The Tribunal has examined the documents and is satisfied that each of the documents and the information contained in the documents:
(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.
69. The information is therefore protected information for the purposes of s 86-1 and s 86-2(b) of the Aged Care Act.
70. The Tribunal is also satisfied that because of the functions of the Agency, 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. Accordingly, 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.
71. On the face of it therefore the documents fall within the exemption 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
72. 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. As the Respondent’s Statement of Facts, Issues and Contentions dated 26 June 2017 (R3) puts it:
22.…. s 38(2) of the FOI Act provides an exception to the exemption in s 38 so far as the documents contain personal information of the Applicant. The FOI Guidelines provide some guidance on how this exception should be applied and state at [5.122]:
Section 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.
73. The only “personal information about the person” (in this case the Applicant) in the five documents the subject of the application was that which appears in the pages that have now, with redactions, been provided to the Applicant (refer Exhibit R9). With the provision of these redacted pages of document 10, the Tribunal is satisfied that none of the documents or the information contained in the documents would come within the exception to exemption in s 38(2) of the FOI Act.
The operation of s 55K(2) of the FOI Act
74. As noted above, the Applicant also raises an argument that the IC should have, under s 55K(2) of the FOI Act, exercised the power to disclose protected information under s 86-3(1) or s 86-9 of the Aged Care Act.
75. The Applicant’s reply to the Respondent’s Statement of Facts Issues and Contentions (A1) puts this argument as follows:
FOI ACT s55K IS THE GATEWAY TO AC ACT s86-3:
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
76. The Applicant’s argument was developed, or further explained, at the hearing before the Tribunal. The Tribunal understands this argument to be that, under s 55K of the FOI Act, the IC had the power to exercise the powers given to the Secretary under s 86-3 or s 86-9 of the Aged Care Act but chose not to in circumstances where he should have exercised those powers. The Applicant, presumably under s 43(1)(b) or s 43(1)(c)(i) of the AAT Act (although that is not stated by the Applicant), proposes that the Tribunal should vary or set aside the Decision and substitute a decision to the effect that the IC should have exercised the power under s 55K(2) of the FOI Act to exercise the powers under s 86-3 or 86-9 of the Aged Care Act.
77. The Respondent’s position in relation to this argument, or at least how the Respondent understood the argument at the time of the filing of the Supplementary Contentions, is set out in paragraph 19 of its Supplementary Contentions (R4) as follows:
19.The Federal Court has already decided in relation to s 86-3 that this cannot be taken into account by the Tribunal in considering s 38(1) of the FOI Act in Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170 (Illawarra Retirement Trust). In that case, Branson J said at [56]:
When the Secretary discloses protected information in circumstances authorised by 86-3 of the Aged Care Act, the disclosure is made under the Aged Care Act, not under the FOI Act. Section 86-3 has no relevance, in my view, to the operation of subs 38(1 A) of the FOI Act as it does not affect a person’s right to access to a document under the FOI Act. It is only the Secretary, acting under the Aged Care Act, who’s 86-3 exempts from the prohibition contained in s 86-2. No other person may rely on the exception contained in s 86-3.
78. The Respondent, at paragraph 20 of the Supplementary Contentions, points out that this Tribunal is bound by the decision in Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170 (Illawarra Retirement Trust). That is undoubtedly the case.
79. What the Tribunal understands the Applicant to be arguing, however, is slightly different to the issue that was considered in the Illawarra Retirement Trust case. The Applicant says that while that case did deal with one aspect of the interrelationship between the FOI Act and the Aged Care Act, the case did not consider that interrelationship in the context of s 55K of the FOI Act and in particular the powers under s 55K(2). That observation would appear to be correct, at least on the basis of the decision in Illawarra Retirement Trust case as published. That is most likely because the decision the subject of the review by the tribunal and subsequently by the Federal Court in the Illawarra Retirement Trust case was not a decision of the IC. Section 55K is only relevant to reviews by the IC.
80. Notwithstanding that, the Applicant’s argument still fails for a number of reasons. Firstly, it fundamentally misunderstands the purpose and operation of s 55K(2). The opening words of s 55K(2), namely “For the purpose of implementing a decision on an IC review”, qualify the power given to the IC under that subsection. Subsection 55K(2) is dealing with implementing the decision made by the IC. The effect of s 55K(2) is to give the IC the powers that the decision maker whose decision is being reviewed would have to implement his decision. What that subsection is not doing is saying that the IC can basically go back in time and exercise a power that a third party may have exercised which would have resulted in a different decision to the one being reviewed. That construction, which is effectively the construction that the Applicant asks the Tribunal to adopt, is at odds with the opening words “For the purpose of implementing a decision….” Accordingly, the Tribunal rejects the Applicant’s construction.
81. Secondly, even if the IC had the power to go back and exercise a power that a third party had chosen not to exercise, which the Tribunal does not accept to be the case, the power that the IC can exercise under s 55K(2) is that of “the person who made the IC reviewable decision”. The person who made the decision being reviewed by the IC in this case was the officer of the Respondent authorised under s 23(1) of the FOI Act to make decisions in relation to FOI requests (see T14 at page 39, first paragraph under heading “Decision”). The “power” or “function” that the Applicant argues should have been exercised by the IC is that of the Secretary under s 86-3 or s 86-9 of the Aged Care Act. It is clearly not a power that could have been exercised by the “person who made the reviewable decision”.
82. Thirdly, even if this Tribunal and the IC had the legal ability to go back and exercise the powers of the initial decision maker to come to a different decision, and even if that power included the power to disclose protected information under s 86-3 or s 86-9, which is not a power of the decision maker who made the IC reviewable decision, the Applicant has not put forward any cogent reason or evidence to support the exercise of the Secretary’s discretion under ss 86-3 or 86-9 of the Aged Care Act to disclose protected information. As far as the Tribunal is aware, based on the information before it, the Applicant has not requested the Secretary to exercise the power under s 86-3 or s 86-9. A logical starting point for the Secretary exercising the power to release protected information under those sections would seem to be a request for the Secretary to do so. No such request appears to have been made.
83. For the reasons set out above, the Tribunal rejects the Applicant’s argument in relation to the operation of s 55K(2) of the FOI Act.
Section 86-2(2) of the Aged Care Act – Conduct
84. Paragraphs 34 and 35 of the Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions (A1) raise the following argument:
34.Section 86-2(1) says you commit a crime by using/disclosing protected information, unless as in 86-2(2) this does not apply to:
a.conduct as you perform your aged care job;
b.releasing it to the person it relates to;
c.‘conduct carried out by an approved provider’;
d.conduct authorised by the person it relates to; or
e.conduct that is otherwise authorised, under this or any other Act.
34.1.Forming s86-2(1) + s86-2(2)(c) into a single sentence produces the statement: A person doesn’t commit an offence if they make record, disclose or use protected information acquired doing their aged care job, to do with conduct carried out by an approved provider.
34.2.Put another way; It's OK to disclose or use protected information acquired through Aged Care work that has to do with the conduct carried out by an approved provider.
35.Simplified yet again; within the all-encompassing set of information covered by the term ‘affairs’ of an approved provider, there is a subset of information called ‘conduct’ of an approved provider that it's OK to use/disclose. ‘Conduct’ being defined as the way of managing a business.
85. The Respondent, in paragraphs 22 and 23 of the Supplementary Contentions (R4) responds to that argument as follows:
22.The applicant has further contended that protected information that relates to the 'conduct of an approved provider’ in s 86-2(2)(c) can be disclosed under the FOI Act.
23.The respondent contends that this is an incorrect interpretation of the law. The respondent contends that the effect of s 86-2(2)(c) is that it is not an offence for an approved provider to make a record of, disclose or otherwise use information in conducting its duties under the Aged Care Act. This has no application in the case of an FOI request, which involves disclosure under the FOI Act. When administering the FOI Act agency officers are performing duties under that Act and not under the Aged Care Act: see Illawarra Retirement Trust at [56].
86. In oral submissions at the hearing before the Tribunal the Applicant put his argument in the following terms:
So my initial query about systematic understaffing that I'm still trying to get to the bottom of, I contend that that’s a conduct issue, and that as – and being a conduct issue, it’s something that I should have access to information about. So we see in section 86(2)(ii) it is not an offence to disclose information that relates to the conduct, as Ms Ladhams has already pointed out, through points (a), (c), (d) and (e). It’s okay to talk about conduct, it’s okay to release information about conduct.
(Transcript at 33)
87. In response, Ms Ladhams, counsel for the Respondent, clarified the Respondent’s position as follows:
… I understood Mr Mullen to interpret my submission in relation to section 86(2)(ii) in relation to conduct, I understood Mr Mullen to suggest that I had indicated that it was okay to release information about conduct. I just want to clarify that that is not in fact my submission. My submission is that 86(2) provides an exception for conduct, bearing in mind that the prohibition in section 86(1) relates to the use, disclosure, or making a record of protected information. Now, when a person is engaging in conduct that’s authorised under the Act it will, at times, be necessary to make a record of, disclose, or use that information in the course of conduct under the Act, but that’s a separate issue to whether information about conduct can be disclosed. And the respondent’s position is that there is nothing in section 86(2)(ii) which says that information about the conduct of an approved provider falls outside the prohibition in section 86(2)(ii).
(Transcript at 36)
88. Ms Ladham’s characterisation of the operation of s 86-2(2) is correct. Subsection 86-2(2) is dealing with the conduct referred to in subsection 86-2(1) – namely, the conduct of making a record, disclosing or otherwise using protected information. What s 86-2(2) is saying is that the conduct of making, disclosing or otherwise using protected information is not an offence under s 86-2(1) if it is done in the performance of a function under the Aged Care Act. Without this provision, every time an employee or officer of the Australian Aged Care Quality Agency made a record, disclosed or otherwise used protected information in the course of his or her work, he or she would, technically, be committing an offence. Subsection 86-2(2) is not, as argued by the Applicant, referring to conduct of third parties such as approved providers and records and information relating to that conduct. Not only is the Applicant’s argument contrary to the principles of statutory construction, it would also render ss 86-1 and 86-2(1) largely inoperative as a core function of the Agency is to collect and review information relating to the affairs (which would include the conduct, of third parties including approved providers). The Applicant’s interpretation would negate the clear intent of the Aged Care Act to provide protection to the type of information identified in s 86-1.
DECISION
89. 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.
90. The Tribunal therefore affirms the decision under review.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
........................[sgd]................................................
Administrative Assistant – Legal
Dated: 19 October 2017
Date of hearing: 29 September 2017 Applicant: In person Representative for the Respondent: Ms A Ladhams Solicitors for the Respondent: Australian Government Solicitor ANNEXURE 1
Date of FOI request 12 August 2015 14 August 2015 FOI request made to Commonwealth Ombudsman Department of Social Security Date transferred to Respondent On or about 20 August 2015 19 August 2015 Relevant terms of request 1. Evidence of Training, Qualifications and Experience of the investigators specifically relevant to the field of Aged Care (Ms Sandra Koller and Ms Emma Cotterill)
2. A full log of all activities in this matter (including internal to the office of the Ombudsman); including records of all correspondence (other than to/from me), conversations (including by phone) and meetings, with all notes made accompanying these activities and minutes of any meetings.
3. Any background information gathered to help with this matter.
4. Any analysis carried out or ‘working notes’.
5. Any Advice obtained by the Ombudsman and/or parties the Ombudsman interacted with.
6. Any “recommendations” made by the Ombudsman related to this matter.
Part 4:
This refers to the Aged Care Standards and Accreditation Agency (ACSAA) and now the Australian Aged Care Quality Agency, aka the ‘Agency’ responses 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 1 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 Ts-005, p26-27)
Respondent’s matter number 15_08 15_06 Date of
Respondent’s
decision12 October 2015 12 October 2015 Date of OAIC review request 10 December 2015 10 December 2015 The request to the OAIC by the Applicant was a request in relation to both decisions and contained the following explanation by the Applicant:
“For the purpose of our communication 1 will treat 15_06 as dealing with part 3 of my request to the DSS.
For the purpose of our communication 1 will treat 15_08 as dealing with part 4 of my request to DSS, plus 10 documents from the CO. ”
OAIC reference number MR15/00418 MR15/00417 (only part 3 of the original FOI request was considered by the OAIC under this reference number). ANNEXURE 2
Attachment A: Schedule of documents
Doc no.
Date
Size (pages)
Description
Decision on access
Exemption
1.
5/02/2015
45
Email from MCQA to DSS enclosing letter, Audit Report and Communication Protocol
Released with redactions
s 47F of the FOI Act: page 1: email sender; page 3: email sender.
2,
14/05/2015
1
Email from AACQA to DSS
Released with redactions
s 47F of the FOI Act: page 1: email sender.
3.
9/06/2015
1
Email from MCQA to DSS
Released with redactions
s 47F of the FOI Act; page 1: email sender.
4.
10/08/2015
8
Email from MCQA to DSS enclosing letter from MCQA to DSS and Certificate for disclosure of protected Information in public interest Australian Aged Care Quality Agency Act 2013,s49(a)
Released with redactions
s 47F of the FOI Act: page 1: email sender; page 7: letter sender and attachments 2-8; page 8: end of list number 1.
5.
10/06/2015
4
Email from MCQA to DSS
Released with redactions
s 47F of the FOI Act: page 1: email sender, page 4: email sender.
6.
10/08/2015
16
Email from MCQA to DSS enclosing Information exchanges with Mr Mullen and referrals of Information from Department Scheme to Accreditation Agency.
Released with redactions
s 47F of the FOI Act: page 1; email sender.
s86-2(1) of the Aged Care Act: page 2-9: all; page 11: all.
7.
10/06/2015
15
Email from MCQA to DSS enclosing Carinya of Bicton – Accreditation Agency submissions to Aged Care Commissioner
Released with redactions
s 47F of the FOI Act: page 1: email sender.
s86-2(1) of the Aged Care Act; page 2-15: all.
8.
10/06/2015
11
Email from MCQA to DSS enclosing Carinya of Bicton assessment contact report for 22 October 2012 and assessors redacted notes including typed transcript of interview notes with Mr Mullen
Released with redactions
s 47F of the FOI Act: page 1: email sender.
s86-2(1) of the Aged Care Act: page 2-11: all.
9.
22/10/2012
1
Checklist for Internal Quality Assessors
Refuse access
s 86-2(1) of the Aged Care Act; page 1: all.
10.
22/10/2015
58
Assessment workbook – internal quality assessors
Refuse access
s 86-2(1) of the Aged Care Act: page 1-58: all.
11.
10/06/2015
89
Email from AACQA to DSS enclosing assessment workbook – Internal quality assessors
Released with redactions
s 47F of the FOI Act: page 1: email sender.
s86-2(1) of the Aged Care Act: page 2-89: all.
12.
10/4/2015
26
Email from AACQA to DSS and enclosures – Audit Assessment Information
Released with redactions
s47F of the FQI Act: page 1: email sender.
s86-2(1) of the Aged Care Act: page 2-26: all.
13.
2/4/2015
23
Email from AACQA to DSS and enclosures – Carinya of Bicton Audit report
Released with redactions
s 47F of the FOI Act: page 1: email sender.
Page Total 301
ANNEXURE 3
| Doc No.[1] | Date | Pages | Author | Addressee | Description of document | Decision | Exemption | Description of exempt/deleted parts of documents | Page in bundle provided to Applicant after IC decision |
| 8 | 10.06.2015 4.57pm | 11 | Chris Falvey | Emma Cotterill | Email from AACQA to Ombudsman enclosing Carinya of Bicton assessment contact report for 22 October 2012 and assessors redacted notes including typed transcript of interview notes with Mr Mullen[2]bookmark1 | Release in part | S 38(1)[3] | Pages 2-11 (Assessment Contact Report): all | 91-101 |
| 9 | 22.10.2012 | 1 | Anne Rowe | N/A | Checklist for Internal Quality Assessors | Exempt in full | S 38(1) | Page 1: all | 102 |
[1] Document number refers to the number used in the Schedule of Documents at T14, p43
[2] The “assessors' redacted notes, including typed transcript of interview notes with Mr John Mullen” referred to in the subject line of this email are document 10 in this schedule
[3] Each of the exemptions claimed under s 38(1) of the Freedom of Information Act 1982 is claimed on the basis that the disclosure of the document is prohibited on the basis that is contains information that is protected from disclosure pursuant to s 86-2 of the Aged Care Act 1997.
Doc
No.
Date
Pages
Author
Addressee
Description of document
Decision
Exemption
Description of exempt/deleted parts of documents
Page in bundle provided to
Applicant after IC decision
10
22.10.2015
58
Anne
Rowe
N/A
Assessment workbook – internal quality assessors
Exempt in full
S 38(1)
Pages 1-58: all
103-160
11
10.06.15
89
Chris
Falvey
Emma
Cotterill
Email from AACQA to Ombudsman enclosing assessment workbook – internal quality assessors
Release in part
S 38(1)
Pages 2-89: all
161-249
12
10.06.15
26
Chris
Falvey
Emma
Cotterill
Email from AACQA to Ombudsman and enclosures – Audit Assessment Information
Release in part
S 38(1)
Pages 2-26: all
250-275
Date: 22 September 2017
3
2
0