Alexander and Secretary to the Department of Health and Ageing [2003] AATA 419 (7 May 2003)

Last Updated: 12 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 419

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/587

GENERAL ADMINISTRATIVE DIVISION

Re: JEFFREY GRAEME ALEXANDER

Applicant

And: SECRETARY TO THE

DEPARTMENT OF HEALTH AND

AGEING

Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date: 7 May 2003

Place: Melbourne

Decision: 1. The Tribunal varies the decision under review to the extent that documents numbered 1, 2, 3, 4, 11, 22, 23, 32, 36 and 39 have been appropriately released to the applicant in accordance with the Freedom of Information Act 1982 (the Act). The remaining 29 documents (as outlined in the reasons for decision) remain exempt documents in accordance with the Act.

2. The Tribunal affirms the partial release of document 5, as is the release of document 9 in the form of which it appears in the Schedule of Partially Released Documents at document 2 in accordance with the Act.

3. The Tribunal affirms the remaining partially released documents as being exempt except with respect to the areas of partial release.

(sgd) E.A. Shanahan

Member

FREEDOM OF INFORMATION - partially exempt and totally exempt documents - National Health Act 1953 (the National Health Act) s.135A(1) with effect on s.38 of Freedom of Information Act 1982 - provision of aged care services - National Health Act - provision of aged care residential services - Aged Care Act 1997 - Aged Care Consequential Provisions Act 1997 - failure to meet the required standards in provision of aged care - revocation of approval of Derwent Court as a nursing home - revocation of approval of Jadwin to operate Derwent Court as a nursing home - subsequent litigation Federal Court level - application of Freedom of Information Act for access to documentation held by the Department of Health and Ageing

Freedom of Information Act 1982 s.38

National Health Act 1953 ss.24, 39A, 44, 45E, 135A(1)

Aged Care Act 1997 s.86(1), 86(2)(i)

Re Zacek and Australian Postal Corporation [2002] AATA 473

Re Corrs Chambers Westgarth and Commissioner of Taxation (1998) 53 ALD 769

Minister for Health and Family Services v Jadwan Pty Ltd (1998) 89 FCR 478

Jadwan Pty Ltd v Secretary, Commonwealth Department of Health and Aged Care

(2002) FCA 1052

REASONS FOR DECISION

7 May 2003 Miss E.A. Shanahan, Member

1. This is an application for review of a decision of a delegate of the Secretary to the Department of Health and Ageing (the Department) which partially exempted some 39 documents under s.38, s.41, s.42, s.43(1)(c) and s.45 of the Freedom of Information Act 1982 (the Act). In light of this decision, the applicant requested an internal review and the Acting Assistant Secretary of the Aged and Community Care Division affirmed the decision in respect of the 39 documents currently before this Tribunal (T docs pp.103-106). The applicant appealed the internal review decision to the Administrative Appeals Tribunal on 23 May 2001.

2. The applicant had, pursuant to the Act, requested:

...

1. Copies of all correspondence to Jadwan and Derwent Court Nursing Home and the Department of Health and Family Services by the First Standard Review Panel (SRP(1)).

2. Copies of all documents provided to the SRP(1) by the Department of Health & Family Services and the Tasmanian Fire Service.

3. Copies of all transcripts and notes taken by the SRP(1) and the Standards Review Panel No. 2 during their investigations of the Derwent Court Nursing Home between February 1997 and September 1997 including any notes taken during the course of any Panel hearing.

4. Copies of all notes taken by any Department staff during telephone discussions and interviews conducted by the Department with respect to Jadwan and Derwent Court Nursing Home since August 1996.

5. Copies of all notes and memorandum prepared or taken by Department staff  including Mr Steven Dellar, Mr Peter Lim, Mr John Hargraves and Mr Simon Kitto in relation to Jadwan and Derwent Court Nursing Home since August 1996.

6. Copies of all documents including any notes, correspondence, memoranda and the like of the Department arising from meetings and telephone discussions, with third parties in relation to Jadwan and Derwent Court Nursing Home.

7. Copies of all documents including notes of any conversations between the Department and Southern Cross Homes concerning Derwent Court Nursing Home.

8. Copies of all documents concerning the transfer of patients from Derwent Court Nursing Home to Southern Cross Homes.

9. Copies of all documents including correspondence notes, memoranda concerning Jadwan and Derwent Court Nursing Home for the period August 1996 to 30 September 1997.

3. The respondent filed, by their legal representatives Phillips Fox, a statement of facts and contentions on 19 April 2002, relating to 39 documents that the applicant asserted should be released. The respondent claimed that these documents were exempt, or partially exempt, in accordance with the provisions of s.22, s.24(5), s.24A, s.36, s.38, s.41, s.42, s.43 and s.45 of the Act.

4. On the day of the hearing before this Tribunal, the respondent filed a supplementary submission dated 27 November 2002. Immediately prior to the hearing, the respondent had released to the applicant 10 documents previously considered fully exempt, 1 partially released document, and had identified that document 9 of the exempt documents was the same in content as the partially released document 2 (see Schedule of Documents).

5. The remainder of the documents, for which total exemption was claimed (numbering 39), are now reduced to 28 and those partially released to 4, (the arithmetical difference being that document 9 of the total exempt documents is the same as document 2 of the partially exempt documents) are exempt solely in accordance with s.38 of the Act and s.135A(1) of the National Health Act 1953 (the National Health Act).

6. The applicant was self-represented and the respondent was represented by Ms D. Mortimer, of counsel, instructed by Phillips Fox. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The applicant tendered copies of his most recent correspondence with the Commonwealth Ombudsman (letter of 26 August 2002, from the applicant to the Ombudsman and the replies of the Ombudsman to the applicant dated 23 October 2002 and 21 November 2002, which included a schedule of the document on file) (Exhibit A1). The respondent did not tender any further documents other than its supplementary submissions noted above.

BACKGROUND TO THE APPLICATION

7. North J in Jadwan Pty Ltd v Secretary, Commonwealth Department of Health and Aged Care (2002) FCA 1052 has succinctly outlined the factual background to this application, and this is reproduced here with acknowledgment (p.6):

...

BACKGROUND

9 In 1984, Jadwan purchased Derwent Court nursing home, which is a Victorian-era residence. Derwent Court was an approved nursing home under s 40AA of the NHA. The approval was subject to the condition under s 40AA(6) limiting the number of beds available for nursing home patients to fifty-one.

10 In September 1996, the Minister took action over the alleged failure of Jadwan to meet the required standards in the provision of care. There was considerable litigation over the issue, and it is chronicled in the judgment of the Full Court in Minister for Health and Family Services v Jadwan Pty Ltd (1998) 89 FCR 478 at 484-8. Further reference to that decision will be made shortly. As the details of the actions taken prior to July 1997 are not directly relevant to this proceeding, attention will be focused on the events in and after July 1997.

11 On 20 July 1997, the Minister's delegate notified Jadwan under s 44(2A) of the NHA of her intention to revoke her approval of Derwent Court as a nursing home on the ground that the nursing home care provider failed to meet the required standards.

12 On 23 July 1997, the Department of Health and Family Services began to co-ordinate the transfer of residents to other approved nursing homes in Tasmania. The result was that within several days there were no residents in Derwent Court, and the nursing home has remained empty ever since.

13 On 6 August 1997, a delegate of the Minister acting under s 44 of the NHA revoked the approval of Jadwan to operate Derwent Court as a nursing home.

14 On 1 September 1997, Jadwan sought reconsideration by the Minister of the revocation decision under s 105AAB(2) of the NHA. The reconsideration was unsuccessful and, on 13 October 1997, the Minister affirmed the revocation of the approval. On 7 November 1997, Jadwan applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision under s 105AAB(7) of the NHA.

15 On 21 January 1998, Jadwan filed an application in this Court seeking review of the revocation decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) on the ground, inter alia, that the Standards Review Panel (the panel) which advised the Minister in making the decision was not properly constituted under the National Health Regulations 1954 (Cth) (NHR). On 19 June 1998, Heerey J allowed Jadwan's application in Jadwan v Minister for Health and Family Services [1998] FCA 715.

The applicant contended that the

...non-released documents or folios are part of the files relating to our business and if the Department perceived Derwent Court business concerned third parties as the business owners, Jadwan should have been consulted or now at least Jadwan should have access to those negotiational records ...

REVISED SCHEDULE OF PARTIALLY EXEMPT DOCUMENTS

Document Nº	File Nº	Folio(s)	Description	FOI Section
1	91/25781	112	Department facsimile	s.38
2	97/1779	79	Department e-mail	s.38
(Document 2 is the same as Document 9 in totally exempt file)
3	97/1779	97	Department e-mail	s.38
4	97/20967	198	Department e-mail	s.38

REVISED SCHEDULE OF EXEMPT DOCUMENTS

(ORIGINAL DOCUMENT NUMBERS RETAINED -- 18 JUNE 2002

Document Nº	File Nº	Folio(s)	Description	FOI Section
5	97/0040	302	E-mail	s.38
Partially released on 27 November 2002 (names of aged care homes deleted)
6	97/0041	3-6	Folio note of meeting	s.38
7	97/0041	7-8	Folio note of meeting	s.38
8	97/0041	9-10	Minutes of meeting	s.38
9	97/0041	15-19	E-mail re funding	s.38
(Same as document 2 of partially released document)
10	97/0041	20-21	E-mail	s.38
12	97/0041	58-61	Facsimile to Department	s.38
13	97/0041	62-66	Minutes of Meeting -- AP*	s.38
14	97/0041	71-75	Facsimile to Department from third party	s.38
15	97/0041	88-90	Department letter to another AP	s.38
16	97/0041	91-92	AP letter to Department	s.38
17	97/0041	94	E-mail to another AP	s.38
18	97/0041	98	E-mail re meeting with another AP	s.38
19	97/0041	102-104	Minute re another AP	s.38
20	97/0041	122-124	Summary of meeting with another AP	s.38
21	97/0337	253-254	File note re relocation	s.38
24	97/0350	316-318	E-mail and letter re third party	s.38
25	97/17779	78	E-mail re third party	s.38
26	97/17779	133-146	Facsimile re third party	s.38
27	97/17779	221-222	Minute regarding third party	s.38
28	97/5409	36	File note re options	s.38
29	97/5409	74-78	Letter from third party	s.38
30	97/5409	99	Notes re contingency plans	s.38
31	97/8420	89-93	Department facsimile and attached letter to third party	s.38
33	97/20442	162-163	Department e-mail re third party	s.38
34	97/20967	98	Minute re funding	s.38
35	97/20967	124	Minute re third party	s.38
37	98/17842	7-10	Letters to and from Southern Cross Homes	s.38
38	98/17842	77-80	Letter to Department from third party	s.38
AP means Approved Provider

8. During the course of the hearing the applicant advised he had read document 24, having accessed it from a third party (trans, p.11). The Tribunal regards document 24 to have been effectively released in full and therefore it did not further consider this document.

THE LEGISLATION

9. The relevant Acts relied upon by the respondent are:

(a) s.38(1) and (2) of the Act , which states:

38.(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.

...

(2) Where 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.

Schedule 3 of the Act, entitled Secrecy Provisions, applies to the National Health Act.

(b) section 135A(1), (4) and (9) of the Health Act states:

135A(1) A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions under the Health Insurance Commission Act 1973 or the medical indemnity legislation, and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first-mentioned person in the performance of duties, or in the exercise of powers or functions, under this Act.

Penalty: $5,000 or imprisonment for 2 years, or both.

...

(4) An authority or person to whom information is divulged under subsection (3), and any person under the control of that authority or person, shall, in respect of that information, be subject to the same obligations and liabilities under subsection (1) as if the authority or the person, as the case may be, were a person performing duties under this Act and had acquired the information in the performance of those duties.

...

(9) A person to whom information is divulged under subsection (6) or (7) and any person under the control of the first-mentioned person shall not, directly or indirectly, except:

(a) in the case of the Secretary to the Department of Social Security or a person under the control of the Secretary to the Department of Social Security - in the performance of duties, or in the exercise of powers or functions, under an Act administered by the Minister for Social Security; or

(aa) in the case of the CEO or an employee of the Services Delivery Agency - in the performance of duties, or in the exercise of powers or functions, under an Act administered by the Minister for Social Security; or

(b) in the case of the Secretary to the Department of Veterans' Affairs or a person under the control of the Secretary - in the performance of duties, or in the exercise of powers or functions, under an Act administered by the Minister for Veterans' Affairs; or

(c) in the case of a person or persons referred to in paragraph (6)(f), (g) or (h) or (7)(j) or (k) or a person under the control of such a person or persons - in the performance of duties, or in the exercise of powers or functions, under the law referred to in that paragraph; or

(d) in the case of a director, secretary or employee of a registered organization or a person under the control of such a person - in the performance of duties, or in the exercise of powers or functions, in relation to the carrying on of the business of the organization;

and while the person is, or after the person ceases to be, such a person, divulge or communicate to any person, any information so divulged.

Penalty: $5,000 or imprisonment for 2 years, or both.

Provisions of the Aged Care Act 1997 (the Aged Care Act) do not apply to this matter, as all documents under consideration were created prior to 1 October 1997 when the Aged Care Act came into effect.

10. The Tribunal was referred to the decision of Senior Member Dwyer in Re Zacek and Australian Postal Corporation [2002] AATA 473 and, in particular, Senior Member Dwyer's consideration of the framework of the Act (paras 34 to 43). These paragraphs are extracted from this decision and reproduced here:

...

34. The Act provides, in s 15, for a request for access to documents to be made. Under s 26 written notice with written reasons shall be given in respect of any decision to refuse access. The Act provides in s 54 for internal review of decisions including decisions refusing to grant access to a document, or not granting access to all the documents to which a request relates. Review of decisions by the AAT is provided for in s 55. Such an application may only be made either where an internal review decision has been made, or where 30 days have elapsed since an agency received an application for internal review, and there has been no notification of the result of the review.

35. The Act applies to documents of an agency and imposes obligations on agencies. The term "agency" is defined in s 4(1) as follows:

"agency" means a Department, a prescribed authority or an eligible case manager;

36. It was not in issue that Australia Post, is a prescribed authority within the meaning of that term in s 4(1) of the Act. Under s 60 of the Act, the agency, rather than the decision-maker, is a party to proceedings before the Tribunal.

37. Before looking at the sections relied on by Australia Post as exempting certain documents from release under the Act, it is appropriate to refer to s 3 of the Act. Section 3(1) expressly states that the object of the Act is to make information available to the public and that discretions are to be exercised in such a way as to facilitate and promote the disclosure of information. Section 3 of the Act provides:

3 (1) The object of the Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by :

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

38. There are other relevant general sections of the Act. Section 11 provides:

11 (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.

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.

39. Section 14 provides for the giving of information to the public by Ministers and agencies, even outside the scope of the Act. It reads:

14 Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

However, that discretion cannot be exercised by this Tribunal. Section 18(2) of the Act provides:

18(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.

The Tribunal does not have power to decide that access be given to an exempt document.

40. Section 61(1) of the Act deals with onus of proof. It provides:

61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

41. The desirability of giving wide access to documents is demonstrated by s 22 of the Act, which provides that where exempt information can be deleted, documents are to be released with deletions. It reads:

22(1) Where:

(a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; and

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

42. As explained by the Tribunal on numerous occasions, the Act in ss 27A and 59A(3) provides a procedure for informing people, whose personal information is contained in documents, of the application before the Tribunal. Once an application is made for review by the Tribunal of a decision under s 41(1) of the Act, s 59A(3) requires that action be taken to notify the person, in respect of whom the exemption is claimed, of the application. It provides:

59A(3) Where:

(a) on a request having been made for access to a document containing personal information about a person (including a deceased person), an agency or Minister decides not to grant access to the document; and

(b) an application is made to the Tribunal for a review of the decision; the agency or Minister must, as soon as practicable, take all reasonable steps to inform the person, or, if the person is deceased, the legal personal representative of the person, of the application.

43. People who object to disclosure of information concerning their personal affairs may write to the Agency or to the Tribunal expressing views on the matter. Alternatively they may decide to apply to be joined as a party to the proceeding as happened in Re Strang and Department of Immigration and Ethnic Affairs and Another (1994) 36 ALD 449.

THE APPLICANT'S SUBMISIONS

11. As previously stated, the applicant submitted that the non-released documents or folios are part of the file relating to his business and, if the Department perceived that the Derwent Court business concerned third parties, as the business owners, Jadwan Pty Ltd (Jadwan) should have been consulted or now, at least, Jadwan should have access to those negotiational records. The applicant felt that information previously disclosed was superficial and gave no idea of what the content of the particular folios contained.

THE RESPONDENT'S SUBMISSIONS

12. In the respondent's written submission, it was noted that 10 documents that were previously exempt had been released to the applicant. The respondent relied entirely on s.38 of the Act. The latter was attracted by the secrecy provisions of Schedule 3 relating to s.135A(1) of the Health Act. Section 135A(1) refers to information contained in the documents not to the document itself.

13. Ms Mortimer submitted that:

...

a. The information contained in the documents is "information with respect to the affairs of a third person". The applicant has already been told, in the internal review decision that the information relates to the affairs of Southern Cross Homes. It is information relating to the agreement of Southern Cross homes to accept a transfer of the residents from the Applicant's Derwent Court nursing home, when Derwent Court was subject to first a sanctions decision and second a revocation decision under the National Health Act.

b. The information was obtained by officers of the Department...,and in particular by Mr Stephen Dellar who was the then State Manager...in performance of his duties, and in exercise of his powers and functions under the National Health Act. The relevant duties, powers and functions were those contained in sections 39A (relating to approvals in principle for new or additional beds), and s44 and 45E of the NHA in particular. The latter two sections were those dealing with the imposition of sanctions in relation to the payment of Commonwealth benefits (s 45E) and the revocation of the approval of a nursing home (s 44).

14. In her oral submission, Ms Mortimer confirmed that the documents under consideration were created prior to 1 October 1997, therefore the Aged Care Act does not apply.

15. While the applicant had contended that the information disclosed at earlier conferences had been superficial (trans, p.18), Ms Mortimer noted that the applicant had been clearly informed that the documents exempted, after internal review, under s.38 of the Act had contained information concerning the affairs of Southern Cross Homes (T docs p.92). The documents before the Tribunal on the day related wholly to the terms on which Southern Cross Homes would accept the transfer of patients from Derwent Court following revocation of the latter's licence. Notice of pending revocation was given on 20 July 1997 and formal revocation occurred on 6 August 1997.

THE TRIBUNAL'S DELIBERATIONS

16. The Tribunal, having examined all the documents in the Revised Schedule, finds them to be exempt documents or partially exempt documents in accordance with s.38 of the Act. The information contained in the documents is covered by the secrecy provisions of Schedule 3 of the Act, as it relates to s.135A(1) of the National Health Act.

17. On 4 December 2002, the Tribunal received a letter from the respondent's solicitors regarding a further inquiry by the applicant relating to the partially exempt document 2 and exempt document 9. These had been identified at the hearing as being the same document. The applicant queried why document 2 consisted of one page whereas document 9 consisted of five pages in length.

18. The exempt documents were filed with the Tribunal on 25 November 2002. Document 9 is five pages in length and partially exempt document 2 is one page in length. As the other four pages were totally exempt, the Tribunal can see no reason why the applicant should have been provided with four blank pages. The respondent's solicitors provided an adequate explanation. The respondent also released folio 97/0041-19 which is part of document 8 and appears to be an e-mail cover sheet dated 6 February 1997 from one departmental officer to another. The contents of this e-mail remain exempt under s.38 of the Act.

19. The Tribunal confirms that the documents contained in the Revised Schedule (partially exempt and exempt) are exempt documents under s.38 of the Act.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd) Catherine Thomas

Clerk

Date of Hearing: 27 November 2002

Date of Decision: 7 May 2003

Solicitor for the applicant: Nil -- IN PERSON

Counsel for the respondent: Ms D. Mortimer

Solicitor for respondent: Phillips Fox