Walker and Secretary, Department of Health (Freedom of information)
[2015] AATA 606
•18 August 2015
Walker and Secretary, Department of Health (Freedom of information) [2015] AATA 606 (18 August 2015)
Division
General Division
File Number(s)
2014/5553
Re
Peter Walker
APPLICANT
And
Secretary, Department of Health
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 18 August 2015 Place Sydney The reviewable decision, being the decision of the Acting Freedom of Information Commissioner, dated 30 September 2014, to refuse access to the documents sought by Dr Walker, is affirmed.
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Deputy President J W Constance
Catchwords
Freedom of Information – whether document exempt – whether disclosure prohibited –Health Insurance Act – whether prohibition extends to professional information – decision affirmed
Legislation
Freedom of Information Act 1982 (Cth) ss 11(1), 38, 58(2)
Health Insurance Act 1973 (Cth) ss 3, 3F(9), 130
Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Illawarra Retirement Trust v Secretary, Department of Health and Ageing and Anor (2005) 218 ALR 384
Osland v Secretary, Department of Justice [2008] HCA 37
Secretary, Department of Justice v Western Suburbs Legal Service Inc (2009) 22 VR 66
Secondary Materials
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (October 2014)
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
This is an application to review a decision of the Acting Freedom of Information Commissioner made 30 September 2014 under the Freedom of Information Act 1982 (Cth).
The decision was that a document could be produced which would set out the information sought by Dr Walker, but that the resulting document would be exempt from production in accordance with section 38 the Act.
For the reasons which follow the decision under review will be affirmed.
BACKGROUND
The request for information
By letter dated 8 February 2012, Dr Walker lodged a Freedom of Information request with the Department of Health. The letter stated:
… I am making an application under Freedom of Information (FOI). My application is for the purposes of the FOI Act.
I request the names and contact details of all those General Practitioners (GPs) who are designated under Medicare as “Non-Vocationally Registered”. (i.e; they are known as “Non-VR GPs”).
It is this request which is now before the Tribunal for determination.
Although it was initially a matter of contention, the Secretary now accepts that a document setting out the requested information can be produced by the Department’s computer system. In accordance with section 17 of the Freedom of Information Act, in these circumstances the application is to be dealt with as if it were a request for access to a written document.
Non-Vocationally Registered General Practitioners
Section 3 of the Health Insurance Act 1973 (Cth) defines general practitioner to include “ a person registered under section 3F as a vocationally registered general practitioner”.
In accordance with section 3F, the Chief Executive Medicare is required to maintain a Vocational Register of General Practitioners. The section also makes provision for a general practitioner to apply to have his or her name entered on the register. Provided the practitioner meets certain requirements, the Chief Executive is required to enter the name.
Registration on the Vocational Register gives the practitioner access to special items of the Medicare benefits scheme and higher Medicare rebates under the Health Insurance Act.
Those general practitioners whose names do not appear on the register are referred to as “non-vocationally registered general practitioners”.
LEGISLATION
Right of access to documents under the Freedom of Information Act
Subsection 11(1)(a) of the Freedom of Information 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;
Section 38 of the same Act provides in part:
(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.
(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.
Disclosure of certain information is prohibited by the Health Insurance Act
The Health Insurance Act includes a provision prohibiting the disclosure of information obtained under that Act. Section 130(1) provides:
(1) A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or for the purposes of enabling a person to perform functions under the Dental Benefits Act 2008, the Personally Controlled Electronic Health Records Act 2012 (whether as a delegate or otherwise) or the indemnity legislation, and while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act. Subsection 130(1) of the Health Insurance Act is specified in Schedule 3 of the Freedom of Information Act.
Limitation on the power of this Tribunal to grant access to information
Subsection 58(2) of the Freedom of information Act provides:
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
Freedom of Information Guidelines
Section 93A(2) of the Act provides that a decision maker must have regard to the Guidelines when exercising powers under the Act. The Guidelines are not binding on this Tribunal but should be applied unless there are cogent reasons to the contrary.[1]
[1] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.
ISSUES FOR DETERMINATION
The issues for determination follow.
(1)If a document containing the information sought by Dr Walker was created, would the document be an exempt document?
(2)If the document would be an exempt document, does the Tribunal have the power to grant access to the document to Dr Walker?
DR WALKER’S ARGUMENT
Dr Walker argues that I should consider “the Department’s handling of this entire matter over more than 2 years”.[2] He lists a number of areas in which he alleges that the Department’s response to his request has been unsatisfactory. Dr Walker’s position is that his application has been “deliberately and purposefully obstructed” by the Department.
[2] Applicant’s Statement of Facts, Issues and Contentions para.2.
In relation to the application of section 38, Dr Walker contends that:
·there is to be a presumption in favour of access;
·it is necessary to assess the information contained in the document and to determine whether it is exempt information;
·the information sought is not private information and therefore outside what is meant by “information” in section 130 of the Health Insurance Act;
·the information is not subject to the provisions of section 130 of the Health Insurance Act as it was not information “collected” by any officer of the Department;
·the information is not subject to section 130 of the Health Insurance Act as subsection 3F(9) permits the Chief Executive Medicare to make available to members of the public the names and practice addresses of medical practitioners who are registered under that section.
REASONING
Issue 1: If a document containing the information sought by Dr Walker was created, would the document be an exempt document?
The objects of the Freedom of Information Act, along with the Guidelines, state strongly a position in favour of the public being granted access to documents. In this respect, Kirby J in his dissenting judgment in Osland v Secretary, Department of Justice stated with reference to the Victorian Freedom of Information Act:[3]
Courts that construe an Act such as the FOI Act, attentive to preserve the status quo ante, avid to find exceptions, and generous in discerning documents exempt from disclosure, are not being faithful to Parliament’s purposes and the declared objects of the Act.
[3] [2008] HCA 37, at para [76].
Although the Tribunal must eschew an approach to the Act which is inconsistent with the object of facilitating public access to documents, I accept what was stated by Beach J in Secretary, Department of Justice v Western Suburbs Legal Service Inc:[4]
The approach required to be taken in interpreting s 38 of the FOI Act [Victorian] does not permit the court to disregard or take liberties with the text of the Act. To the contrary, while the court should strive to interpret the FOI Act in a manner harmonious with its objectives, it should do so only to the fullest extent that the text actually allows.
[4] (2009) 22 VR 66, 74.
The Freedom of Information Act seeks to preserve provisions under other enactments which protect against the unauthorised disclosure of certain information.[5] This is recognised in the Guidelines and embodied in provisions such as section 38 of the Act. In response to an argument that such protective provisions should be construed narrowly in accordance with the objects of the Freedom of Information Act, Beach J stated in Secretary, Department of Justice v Western Suburbs:[6]
... it is to be remembered that s 30 of the Corrections Act does not exist merely to be picked up by s 38 of the FOI Act. Section 30 of the Corrections Act has a stand alone application preventing the persons to whom it applies from disclosing confidential information.
[5] See Illawarra Retirement Trust v Secretary, Department of Health and Ageing and Anor (2005) 218 ALR 384, at para [53], where Branson J stated: “The apparent purpose of specifying in Sch 3 of the FOI Act ... [sections] of the Aged Care Act is to ensure that information protected under Div 86 of the Aged Care Act is not disclosed other than as authorised by that division”.
[6] (2009) 22 VR 66, 76.
The information sought by Dr Walker relates to those practitioners who are non-vocationally registered. Section 3F(9) of the Health Insurance Act permits the Chief Executive Medicare to disclose information on the Vocational Register of General Practitioners. It does not provide for the disclosure of information relating to those practitioners whose names do not appear on the Register.
Subject to certain exceptions, subsection 130(1) of the Health Insurance Act prohibits the disclosure of any information acquired in the performance of duties or exercise of powers under the Act. The names and contact details of non-vocationally registered practitioners are acquired and retained by the Department and the Chief Executive for the purposes of the administration of the Medicare benefits scheme. Clearly anyone within the Department who has access to the details of those practitioners who are non-vocationally registered has acquired that information in the performance of duties or the exercise of powers or functions under the Act. It is not suggested that the information could be acquired otherwise. It was not argued that the exceptions contained in section 130 apply in this case. The exceptions are clearly inapplicable.
Dr Walker sought to draw a distinction between personal and professional information. He argued that “information” in section 130 of the Health Insurance Act only encompasses personal information. In support of this, Dr Walker pointed to section 3F(9) which provides:
(9) The Chief Executive Medicare or an authorised officer may make available to members of the public, on request, the names of medical practitioners who are registered under this section and the addresses at which they practise.
In addition, Dr Walker argued that the proviso that information be “with respect to the affairs of another person” meant that the section was designed to protect private and personal information only. The information which he seeks is related only to doctors in their capacity as practitioners and not as private persons.
In approaching the task of statutory construction, the High Court stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)[7]:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[7] (2009) 239 CLR 27, at para [47], per Hayne, Heydon, Crennan and Kiefel JJ.
The interpretation for which Dr Walker argues would require the reading down of the term “information”. The ordinary, unambiguous meaning of the term is not limited to personal information. Furthermore, section 130 is designed to protect the information which individuals provide to the Department under the Act. Such would suggest that the ordinary meaning of the word is to be adopted.
The only qualification on the word “information” is that it be “with respect to the affairs of the other person”. The affairs of a person are generally inclusive of his or her personal and professional affairs. Had Parliament intended that protected information only encompass personal information it would have added the word “personal” before “information”, or specified that that the information be with respect to the “personal” affairs of a person.
The existence of section 3F(9) does not assist Dr Walker’s argument in this regard. Although section 3F(9) does provide for the provision of the details of vocationally registered practitioners, this can only be done in narrow circumstances: first, there must be a request, and secondly, the provision of details is at the discretion of the Chief Executive of Medicare or an authorised officer. Should professional information not be protected, and it be permissible for anyone to disseminate the professional details of practitioners obtained under the Act, there would be no need for the provision contained in section 3F(9). An interpretation of section 130 that excluded professional information would therefore be illogical and inconsistent with the Act itself.
The legislative text, when viewed in its context, does not support an interpretation which excludes professional information from the operation of section 130. The names and contact details of non-vocationally registered practitioners are information with respect to the affairs of those practitioners.
Subsection 130(1) therefore prohibits the disclosure of the information sought by Dr Walker. As that subsection is specified in Schedule 3 of the Freedom of Information Act, subsection 38(1) of the Freedom of Information Act applies to make the document which would come into existence containing the information, an exempt document. In accordance with subsection 11A(4) the Minister is not required to give access to the document.
I do not accept Dr Walker’s argument that I must assess the information which would be contained in the proposed document to determine whether it is exempt information. Subsection 38(1) of the Freedom of Information Act makes the information exempt by reason of its being the subject of subsection 130(1) of the Health Insurance Act. No further enquiry is required or permissible.
Further, subsection 130(1) does not require that the information be shown to be “private” nor does it require that the information be “collected” by an officer of the Department. There is no justification for reading such requirements into the unambiguous wording of the Act.
I note Dr Walker’s concerns with respect to the progress of his Freedom of Information application. However, it is not within the power of this Tribunal to consider the manner in which the Department has dealt with Dr Walker’s request. The Tribunal is a creature of the Administrative Appeals Tribunal Act 1975 (Cth) and has only the powers given to it by that Act. Section 25 provides that the Tribunal may review a decision in respect of which another enactment of the Commonwealth Parliament has provided for such a review. There is no provision of any enactment which permits the Tribunal to conduct the review sought by Dr Walker.
Issue 2: If the document would be an exempt document, does the Tribunal have the power to grant access to the document to Dr Walker?
Subsection 58(2) of the Freedom of Information Act is clear that once a document is established to be an exempt document the Tribunal does not have the power to grant access to that document.
CONCLUSION
The decision under review, being the decision that a document containing the information sought by Dr Walker would be an exempt document in accordance with the Freedom of Information Act 1975 (Cth) and made by the Acting Freedom of Information Commissioner on 30 September 2014, will be affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. .............................[sgd]...........................................
Associate
Dated 18 August 2015
Date(s) of hearing 8 May 2015 Date final submissions received 15 May 2015 Applicant In person Respondent K Robbins