Neilson and Secretary, Services Australia (Freedom of Information)
[2020] AATA 1435
•25 May 2020
Neilson and Secretary, Services Australia (Freedom of Information) [2020] AATA 1435 (25 May 2020)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2019/4149
Re:Mr Mitchell Neilson
APPLICANT
Secretary, Services AustraliaAnd
RESPONDENT
DECISION
Tribunal:Deputy President R I Hanger AM QC
Date:25 May 2020
Place:Brisbane
The decision under review is affirmed.
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Deputy President R I Hanger AM QC
CATCHWORDS
FREEDOM OF INFORMATION – Freedom of Information Act – access to information – requests involving computers – information not available in discrete form – whether use of a computer or other equipment is ordinarily available to the agency under s 17 – where agency refused request on grounds that the document does not exist under s 24A – Privacy Rules Linking Medicare Benefits Schedule and Pharmaceutical Benefits Scheme under s 135AA National Health Act 1953 – decision under review affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth)
National Health Act 1953 (Cth)
National Health (Privacy) Rules 2018
CASES
Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67
Dimitrijev v Department of Education [1998] QlCmr 14
Re Halliday and Corporate Affairs (1991) 4 VAR 327
Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23
REASONS FOR DECISION
Deputy President I R Hanger QC AM
25 May 2020
INTRODUCTION AND BACKGROUND
This is an application to review a decision under the Freedom of Information Act 1982 (Cth) (FOI Act) to refuse access to certain documents.
On 2 October 2017 the Applicant made a request for access to documents under the FOI Act.[1] The information requested under the FOI Act was:
MBS [Medicare Benefits Scheme] and PBS [Pharmaceutical Benefits Scheme] data as it relates to my attached table. For the items listed I would like to know how many people use these services at least once between 2012 and 2016; the date or month of the first time in each service was used within the period; the birth year for each patient; and gender. Firstly is of interest from 1986 to 1994 inclusive. Also. I am looking for the patient identifier to be consistent across all item codes to allow for cross referencing.
[My insertions for clarification]
[1] Exhibit 1, T Documents, T5, pages 52-58, Freedom of Information (FOI) request.
The request also attached a table, which sought the following specific data set:
·The number of people who used the particular services listed in the table annexed to his request between 2012 and 2016;
·The date or month of the first time each service was used within the period;
·The birth year for each patient (with the Applicant being interested in birth years from 1986 to 1994 inclusive, and 1982 and 1998);
·The gender of each patient; and
·A confidentialised patient identifier which could be used to cross reference servicing across MBS and PBS.[2]
[2] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 22 November 2019, page 2, paragraph 5.
The Respondent notified the Applicant of the decision dated 10 November 2017[3] to refuse his request on the basis that:
·All reasonable steps had been taken to locate the requested documents but they did not exist; and
·Section 17 of the FOI Act did not apply as the Respondent was unable to provide a written document containing the information in a discrete form, by the use of a computer that is ordinarily available to the Respondent for retrieving or collating stored information.[4]
[3] While the Applicant was notified on 2 November 2017, the written reasons are dated 10 December 2017.
[4] Exhibit 1, T Documents, T6, page 60, Original decision.
On 14 December 2017 the Respondent was notified that the Applicant had requested that the Information Commissioner (IC) review the Respondent’s decision to refuse his FOI request.[5] On a review of that decision the IC on 12 June 2019 affirmed the decision.[6]
[5] Exhibit 1, T Documents, T7, pages 67-68, Notice of IC review and request for documents.
[6] Exhibit 1, T Documents, T8, pages 108-115, Reviewable decision.
On 6 July 2019 the Applicant applied to this Tribunal for review of the decision of 12 June 2019.[7]
[7] Exhibit 1, T Documents, T1, pages 1-21, Application for Administrative Appeals Tribunal Review.
A hearing was held on 11 March 2020. At the hearing, the Applicant appeared in person and was self-represented. The Respondent was represented by Australian Government Solicitor.
ISSUES
The issues for the Tribunal to determine are:
(a) Whether the Respondent is required to produce a written document by ‘the use of a computer or other equipment that is ordinarily available to it’ in response to the Applicant’s request, pursuant to section 17 of the FOI Act; and
(b) If not, whether the IC was justified in affirming the decision to refuse the request under section 24A(1) of the FOI Act on the grounds that the document does not exist.[8]
[8] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 22 November 2019, page 1, paragraph 2.
LEGISLATIVE FRAMEWORK
Section 17 of the FOI Act provides as follows:
(1) Where:
(a) a request (including a request in relation to which a practical refusal reason exists) is made in accordance with the requirements of subsection 15 (2) to an agency;
(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
…
(c) the agency could produce a written document containing the information in discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
(ii)….;
The agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
(2) An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.
Section 24A of the FOI Act provides:
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.
CONSIDERATION
This matter hinges on the meaning and application of section 17 (1)(c)(i) of the FOI Act, and in particular whether the agency could produce a document in a discrete form by the use of a computer and a relevant program that is ordinarily available to the agency.
The Tribunal has had regard to oral submissions made by the Applicant and Respondent, and the oral evidence of Mr Romi Soukieh, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
The Applicant submitted that the Respondent was incorrect in saying that to extract the information requested required a new program to be written.[9] That was denied by the Respondent.
[9] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions, received 2 March 2020, pages 1 and 2; Transcript, dated 11 March 2020, pages 13, 15, 19-20, paragraph 12.
The Applicant also submitted there was procedural unfairness accorded to the Applicant by the Respondent in various ways throughout his dealings with the Respondent.[10]
[10] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions, received 2 March 2020, pages 1, 2, and 17-19; Transcript, dated 11 March 2020, page 13, lines 3-44.
The Applicant submitted that laws were deliberately changed to deny the type of request made by the Applicant being made in the future.[11] He contended that the Respondent had no intention of granting him his request, claiming the Respondent “used s24 to make the appearance of validating the s17 exemption”.[12]
[11] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions, received 2 March 2020, page 2, paragraph 13.
[12] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions, received 2 March 2020, page 17, paragraph 3.
The Respondent submits that the information sought is not available in discrete form in written documents and that the use of a computer with existing programs ordinarily available could not extract the relevant data. At hearing the Respondent submitted the following:
We say that section 17 does not operate in the way in which the applicant contends. We say that principally for two reasons. The first is that we say it is necessary to create a new computer program which is capable of bringing together the disparate pieces of information, and we say that is not something section 17 requires… [13]The second issue is relating to the rules, the legislative rules which govern the two databases which would have to be interrogated, and we say that the law as it stands does not permit the agency to combine the data in the way that has been requested, and this means it is not part of our ordinary operations to combine the data in the way that has been tasked.[14]
[The Respondent is referring there to Privacy Rules under Section 135AA of the National Health Act 1953 (Cth)]
[13] Transcript dated 11 March 2020, page 3, lines 12-16.
[14] Transcript dated 11 March 2020, page 5, lines 10-15.
Evidence of Mr Romi Soukieh
The only witness called to give evidence was Mr Romi Soukieh. He is the Director of the Health Management Information Section within the Health Data Analysis and Strategy Branch at Services Australia. He is responsible for chairing the External Request Evaluation Committee and managing the safe release of health information. As part of his duties, he assesses data requests with the support of his section, and responds to requests made through the FOI process.[15]
[15] Exhibit 6, Affidavit of Mr Romi Soukieh, paragraphs 1-3.
He holds a degree of Bachelor of Information Technology with majors in Software Development and Information Systems and has worked in software development, testing, enterprise architecture, business analysis, project management, management consultancy and as a data analyst.[16]
[16] Exhibit 6, Affidavit of Mr Romi Soukieh, paragraph 5.
He was cross-examined for a number of hours by the Applicant, who appeared to have an understanding of information technology. I am satisfied that Mr Soukieh was a completely reliable witness and I accept his evidence in its entirety. The Tribunal notes that the Applicant adduced no evidence to counter anything Mr Soukieh said. Further, no other expert evidence was submitted to the Tribunal to dispute the evidence of Mr Soukieh.[17]
[17] Transcript dated 11 March 2020, page 69, lines 6-9.
No evidence was led by the Applicant or adduced from cross-examination to indicate any procedural unfairness or bad faith on the part of the Respondent.
The only real issue relates to the interpretation and application of section 17 of the FOI Act.
Mr Soukieh explained in his affidavit :
The request made by the Applicant requires custom computer programs to be developed and tested to produce a report containing the information which he has requested. No existing computer programs, information assets or searching facilities presently exist to satisfy the Applicant’s request. The Applicant’s request seeks data that is presently stored in six different data tables sitting within three separate data schemas within the agency’s Enterprise Data Warehouse. The development of custom computer programs would be required for information to be extracted and reports generated from these six distinct tables because:
PBS body system classifications and item descriptions are held in a distinct table within the PBS claims data schema;
PBS claims information is held in a distinct table within the PBS claims data schema;
Medicare consumer information is held in two distinct tables within the Medicare entitlement data schema;
MBS claims information is held in a distinct table within the MBS claims data schema;
MBS item descriptions are held in a distinct table within the MBS claims data schema;
Medicare stores almost all of its information in a raw, highly segmented form…
While information from the distinct tables outlined above can technically be joined, the agency cannot combine information from all tables outlined above due to restrictions with the Privacy Rules. For that reason, the agency does not have a pre-existing program that can run the data extraction and collation processes that would be necessary to fulfil the Applicant’s request.
[My emphasis]
Whether the use of a computer or other equipment is ordinarily available
The term “ordinarily available” has arisen for construction in a number of matters.[18]
[18] See Collection Point Pty Ltd V Commissioner of Taxation [2013] FCAFC 67; Re Halliday and Corporate Affairs (1991) 4 VAR 327; Dimitrijev v Department of Education [1998] QICmr 14; Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23.
The most relevant and authoritative of those is the decision of the Full Federal Court in Collection Point Pty Ltd V Commissioner of Taxation [2013] FCAFC 67.
In that case it was common ground that a new computer program would be necessary to transfer the information sought from the Respondent’s database into a discrete format that could be downloaded onto a CD or DVD. The task would involve at least seven days’ work by a computer programmer who would have to write and test a new computer program, produce a report and convert it to an Excel spreadsheet for loading. At the time of the hearing the work was expected to cost about $7000.
In considering authorities on comparable state acts the Court said, “[b]roadly, the State tribunal decisions held that a computer would not be “ordinarily available” or “usually available” under the applicable legislation if a new computer program were required and that the relevant agency would not be obliged to provide the requested information.”[19]
[19] Collection Point Pty Ltd V Commissioner of Taxation [2013] FCAFC 67 at [16].
The Court said when considering the issue of whether or not a new program was required, “It follows that in our opinion, the need for a new computer program to enable the computer ordinarily available to the agency for retrieving or collating stored material to produce the requested document is a fact capable of meaning that the agency cannot, by the use of a computer ordinarily available, produce a requested document”.[20]
[20] Collection Point Pty Ltd V Commissioner of Taxation [2013] FCAFC 67 at [52].
However, the Court also said that a computer might in some cases be “ordinarily available” even if a new computer program were required for the computer to produce the requested document.[21]
[21] Collection Point Pty Ltd V Commissioner of Taxation [2013] FCAFC 67 at [49].
In considering the relationship of section 17 (1) to 17 (2) of the FOI Act, the Court said that section 17 (1) “specifies particular conditions in which an agency’s obligation to provide access to requested information will arise although it would not otherwise be imposed under the Act. Section 17 (2) specifies the circumstances in which the agency will be exempt from compliance with the obligation under section 17 (1).”[22] The language of the sections makes clear that the existence of the agency’s obligations are independent of and distinct from the circumstances exempting the agency from compliance. The obligations arise sequentially even though they may overlap.
[22] Collection Point Pty Ltd V Commissioner of Taxation [2013] FCAFC 67 at [37].
In the present case the evidence before the tribunal is that the Respondent could write the relevant computer program for a cost of less than $3000.[23] That is a relatively small sum. However, the Respondent’s argument in this case did not focus upon the difficulty of responding to the request of the Applicant or the expense involved in doing so under section 17 (2) of the FOI Act.
[23] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 22 November 2019, page 12, paragraph 50.
The Tribunal notes the Applicant’s contention that it is not necessary to write a program and that his request could be satisfied “in a simpler fashion and with existing software in an ordinary manner.”[24] However, the Applicant did not provide any determinative or expert evidence to counter that of Mr Soukieh. In respect of the evidence submitted, the Tribunal accepts the evidence of Mr Soukieh.
[24] Transcript dated 11 March 2020, page 15, lines 7-10.
The Respondent’s argument, focussing on section 17(1), is that the information sought was not ordinarily available, not only because it would have to write a new computer program, but also because it was not permitted to do so by virtue of the rules under the provisions of the Privacy Rules issued under section 135AA of the National Health Act 1953 (Cth).[25]
[25] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 22 November 2019, pages 10-11; Transcript dated 11 March 2020, pages 59-65.
Section 135AA(5)(e) provides that those rules must prohibit linkage of information in the database of the MBS with the information in the database of the PBS unless the linkage is authorised in the way specified in the rules.
Rule 9 of the National Health (Privacy) Rules 2018 is the relevant rule. The rule does contain exceptions, but the rule, and other provisions that would require other approvals if the Applicant were successful in this application,[26] are not reasons as to why this application should not be granted. They are relevant to explain the reason that the information sought is not ordinarily available, and would require the writing of a new program to comply with the request.
[26] Health Insurance Act 1973 (Cth); Australian Immunisation Register Act 2015 (Cth); Transcript dated 11 March 2020, page 65, lines 19-35.
In Collection Point the Court said:
Whether an item is ordinarily available will depend upon the facts of the particular case, which may include whether access to it would involve a departure from the agency’s ordinary or usual conduct and operations[27].
[27] [2013] FCAFC 67 at [48].
In the present case I accept the Respondent’s argument that the documents sought are not “ordinarily available.” The reason that they are not ordinarily available is that access to the documents would involve a departure from the agency’s ordinary or usual conduct and operations.
DECISION
The decision under review is affirmed.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC
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Associate
Dated: 25 May 2020
Date of hearing: 11 March 2020
Date of last submissions received: 11 March 2020
The Applicant: In person (self-represented)
Solicitors for the Respondent: Mr Justin Davidson
Australian Government Solicitor
ANNEXURE 1: EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
1 Section 37 T-Documents
(page 1 to 115)
R - 12 AUG 19 2 Respondent’s Statement of Facts, Issues and Contentions R 22 NOV 19 22 NOV 19 3 Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions A undated 20 DEC 19 4 Applicant’s Statement of Facts, Issues and Contentions A undated 2 MAR 20 5 Applicant’s bundle of documents A various 2 MAR 20 6 Affidavit of Mr Romi Soukieh R 5 MAR 20 5 MAR 20 7 Respondent’s submissions to the Applicant R 2 OCT 19 2 OCT 19
0
2
0