Sellars and Department of Health and Ageing

[2006] AATA 296

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 296

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1203

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRENDA SELLARS

Applicant

And DEPARTMENT OF HEALTH AND AGEING

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date  2 March 2006

Date of Written Reasons             31 March 2006

Place  Sydney

Decision   The decision under review is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

FREEDOM OF INFORMATION – secrecy provisions – information sought is protected and personal information – no power and no discretion to disclose protected and personal information – decision affirmed.

LEGISLATION
Freedom of Information Act 1982 s 38, Schedule 3
Aged Care Act 1997 ss 86.1, 86.2, 86.3 and Schedule 1

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly

1. I will not give lengthy reasons, but it is apparent to me when I consider section 38 of the Freedom of Information Act 1982 and the Schedule to the Freedom of Information Act, Schedule 3, that the secrecy provisions under section 38 include sections 86.2(1) relevantly of the Aged Care Act 1997.  When one goes to that,     86.2(1) refers to the use of protected information and, in effect, makes it an offence to disclose such information.

2. Section 86.1 of the Aged Care Act defines protected information and protected information is information that:

(a)       was acquired under or for the purposes of this Act; and

(b)       either:

(i)        is personal information; or

(ii)       relates to the affairs of an approved provider; or …

3.      When considering 86.2, which creates the offences for disclosing such information, there are certain exceptions. They are, relevantly:

2(b)     the disclosure of information only to the person to whom it relates; or

…

2(d)     conduct that is authorised by the person to whom the information relates;

…

4.      Personal information is relevantly defined in the Schedule to the Aged Care Act. It is a very broad definition which states:

Personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

5. That Schedule also contains the definition of protected information which refers to that given in section 86.1, which I have already read out.

6. I have had the opportunity to consider the documents and the material that is in them. In my opinion the information falls into the categories of personal information or protected information generally, in that there are two categories of personal information relating to individuals. There is also information which relates to an approved provider. I have also considered section 86.3 of the Aged Care Act. 

7.      I have also taken into account what Branson J has said in relation to that provision in Illawarra Retirement Trust v Secretary Department of Health and Ageing and Another (2005) FCA 170. Her Honour has clearly said at paragraph 56 of her decision that the power under section 86.3 of the Aged Care Act cannot be exercised by me in relation to this Freedom of Information application. The only person who can exercise that power is the Secretary of the Department of Health and Ageing. Whether further material can be put to the Secretary to persuade him to disclose the information, I do not know, but at this stage Mr Hyland's instructions, who represented the Department of Health and Ageing, are that when this Freedom of Information application was made, consideration was given to the exercise of that power, but the decision was made that it should not be exercised.

8.      In any event, I am restricted by the terms of the Freedom of Information Act and the Aged Care Act section 86.1 and 86.2. In my opinion the information sought is protected information within the meaning of section 86.1 and pursuant to section 38 of the Freedom of Information Act, it is exempt and I have no power and accordingly no discretion to disclose that information. I do note, however, that Mr Hyland has instructions to provide the forms without the information in it and also to disclose some of the information in the fifth document, which was the subject of this application.

Decision

9.      For those reasons I affirm the decision not to disclose the material to Mrs Sellars, the Applicant.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  2 March 2006
Date of Decision  2 March 2006
Date of Written Reasons          31 March 2006
Advocate for the Applicant       Self Represented
Solicitor for the Respondent     Australian Government Solicitor