Neilson and Secretary, Services Australia (Freedom of Information)

This matter concerned a Freedom of Information Act request made by the applicant to Services Australia. The applicant sought access to information that would involve linking data from the Medicare Benefits Schedule and the Pharmaceutical Benefits Scheme. Services Australia refused the request on the grounds that the document did not exist in a discrete form and that the use of a computer with ordinarily available programs could not extract the requested data. The decision of Services Australia was affirmed by Deputy R I Hanger Am Qc P.

The primary legal issue before the court was the interpretation and application of section 17 of the Freedom of Information Act 1982 (Cth), specifically whether Services Australia could produce the requested information in a discrete form using a computer and a program that was ordinarily available to the agency. This also involved considering section 24A of the Act, which permits refusal if reasonable steps have been taken to find a document and it is satisfied that the document does not exist or cannot be found. The applicant contended that the respondent was incorrect in asserting that a new computer program was required and alleged procedural unfairness.

The court accepted the respondent's argument that the information sought was not "ordinarily available." This conclusion was based on the evidence of Mr Romi Soukieh, Director of the Health Management Information Section at Services Australia, who testified that the request required the development and testing of custom computer programs to extract and collate data from six different tables across three separate data schemas. Crucially, Mr Soukieh explained that even if the data could technically be joined, the agency was prohibited from combining it due to Privacy Rules under section 135AA of the National Health Act 1953 (Cth). This prohibition meant that the agency did not have a pre-existing program for such data extraction and collation as part of its ordinary operations. The court found Mr Soukieh to be a reliable witness and accepted his evidence in its entirety, noting the absence of any counter-evidence from the applicant.

The decision under review was affirmed.