Right to Information No.: RTI202223-073

Right to Information Reference: RTI202223-173

Date of Decision:           23 February 2023

Information Requested

An application made pursuant to the Right to Information Act 2009 (‘the Act’), received the Department of Health (“the public authority”) on 24 January 2023 and accepted on 24 January 2023.

The applicant, pursuant to s15(4)(a) of the Act, agreed to grant an extension on the application for assessed disclosure.

The information requested:

[1]

1. As at 24th September 2022, how many children and adolescents, who are transgender or gender diverse, are receiving treatment at the Royal Hobart Hospital Tasmanian Gender Service? Can the figures be reflected as follows:
   (a) the number of those whose natal sex was female?
   (b) the number of those whose natal sex was male?
   (c) the number of those who were born intersex?
2. As at 24th September 2022, how many children and adolescents, who are transgender or gender diverse, are receiving stage one puberty blocker treatment at the Royal Hobart Hospital Tasmanian Gender Service? Can the figures be reflected as follows:
   (a) the number of those whose natal sex was female?
   (b) the number of those whose natal sex was male?
   (c) the number of those who were born intersex?
3. As at 24th September 2022, how many children and adolescents, who are transgender or gender diverse, are receiving stage two gender affirming hormone treatment at the Royal Hobart Hospital Tasmanian Gender Service? Can the figures be reflected as follows:
   (a) the number of those whose natal sex was female?
   (b) the number of those whose natal sex was male?
   (c) the number of those who were born intersex?

[2]

4. As at 24th September 2022, how many employees including consultants (measured as full-time equivalents (FTEs)) worked at the Royal Hobart Hospital Tasmanian Gender Service?

I will deal with your request in two parts, as per my numbering above.

Request 1

Decision

My decision is to provide the information sought, as outlined below and in accordance with exemptions available under the Act.

2. As at 24th September 2022, how many children and adolescents, who are transgender or gender diverse, are receiving stage one puberty blocker treatment at the Royal Hobart Hospital Tasmanian Gender Service? Can the figures be reflected as follows:the number of those whose natal sex was female? – Less than 5

(a) the number of those whose natal sex was male? – Less than 5
(b) the number of those who were born intersex? – Less than 5
(c) the number of those who were born intersex? – Less than 5

3. As at 24th September 2022, how many children and adolescents, who are transgender or gender diverse, are receiving stage two gender affirming hormone treatment at the Royal Hobart Hospital Tasmanian Gender Service? Can the figures be reflected as follows:

(a) the number of those whose natal sex was male? – Less than 5
(b) the number of those who were born intersex? – Less than 5
(c) the number of those who were born intersex? – Less than 5

Statement of Reasons

Section 10 Electronic Information

This information cannot be produced in its entirety from the Department’s electronic computer systems as it is in a format that is not searchable. Retrieval and collation of this information would require a substantial and unreasonable diversion of resources. The information held by the Department concerning the request for information is held against the individual file of the tenant. Attempts to retrieve the historical information has proven to be challenging and hence pursuant to s10 of the Act (electronic information) the request is refused.

1. If information is stored in an electronic form, a Minister or public authority may refuse an application under section 13 if –
   (a) the information cannot be produced using the normal computer hardware and software and technical expertise of the public authority; and
   (b) producing it would substantially and unreasonably divert the resources of the public authority from its usual operations, having regard to the factors in Schedule 3.

Having regard to the factors under Schedule 3 of the Act:

Clause 1(a): the terms of the request, especially whether it is of a global kind or a generally expressed request, and in that regard whether the terms of the request offer a sufficiently precise description to permit the public authority or Minister, as a practical matter, to locate the document sought within a reasonable time and with the exercise of reasonable effort.

The request being of a global kind the ability to locate the information cannot be undertaken in a reasonable time without dedication of resources.

Clause (b): whether the demonstrable importance of the document or documents to the applicant might be a factor in determining what in the particular case are a reasonable time and a reasonable effort.

Even though the applicant is a member of parliament, and the information is in connection with a children’s health service, the consideration under Schedule 3 may diminish somewhat due to this fact but I am not convinced that the weight of importance of the application to the applicant outweighs the utilisation of resources in further assessing the application.

Clause 1(c): more generally whether the request is a reasonably manageable one, giving due, but not conclusive, regard to the size of the public authority or Minister and the extent of its resources available for dealing with applications.

In this context, the resources to be considered are the existing resources required to process the request consistent with attendance to other priorities. ¹ It does not refer to the whole of the resources or possible resources it may temporarily be able to obtain to assist in processing the request. ² Therefore, the resources to be considered are those which would have to be used in:

1. manually identifying the information in the Department’s electronic computer systems;
2. identifying, locating and collating the information from the computer system;
3. deciding whether to grant, refuse or defer access to the information or edited information, including resources to be used in examining the information;
4. extracting the information; and
5. notifying the applicant of any interim or final decision on the request.

The advice of the information custodian in relation to the application is that it may take the dedication of one officer more than five workdays in collecting the information. Such resources cannot be made available for this request without significantly affecting the other work of both the information custodian and the delegated officer under the Act. I further consider that the diversion of resources would be substantial taking account of the number of other Right to Information requests on hand.

Clause 1(d): the public authority’s or Minister’s estimate as to the number of sources of information affected by the request, and by extension the volume of information and the amount of officer-time, and the salary cost.

The advice from the information custodian is that the request will involve an officer being dedicated to manually review the database. A test undertaken demonstrated that the task might take more than five working days. Both the amount of officer-time and salary cost in collating and then assessing the information would therefore be considerable and, in my view, an unreasonable diversion of resources.

Clause 1(e): the timelines binding the public authority or Minister.

The applicant has demonstrated generosity in granting an extension of time for the assessment of requests that cover similar subject matter. Even if the applicant granted additional time for assessing this request, the time dedicated to this application would consequently influence the timelines for other requests.

Clause 1(f): the degree of certainty that can be attached to the estimate that is made as to sources of information affected and hours to be consumed, and in that regard importantly whether there is a real possibility that processing time might exceed to some degree the estimate first made.

The information custodian undertook a test exercise in searching for the information the estimate quoted is likely to be greater.

Clause 1(g): the extent to which the applicant has made other applications to the public authority or Minister in respect of the same or similar information or has made other applications across government in respect of the same or similar information, and the extent to which the present application might have been adequately met by those previous applications

The applicant has not submitted any other Right to Information applications.

Clause 1(h): the outcome of negotiations with the applicant in attempting to refine the application or extend the timeframe for processing the application.

Negotiations were not entered, nevertheless, this does not modify my view that assessing this application would substantially and unreasonable be a diversion of resources.

Clause (i): the extent of the resources available to deal with the specified application.

The information custodian has limited resources available to set aside for an officer to dedicate time in sourcing the information while the delegated officer has existing applications still to be assessed.

I further find that the diversion of resources to provide the information would be unreasonable. While the matters listed in Schedule 3 of the Act must be considered when assessing if the processing of an application would result in a substantial and unreasonable diversion of resources, it is not a complete statement of the matters, which may be relevant. In making this decision, I have therefore considered all the facts and circumstances including:

1. the number, type and volume of information falling within the scope of the request;
2. the complexity of the request; and
3. the work time involved in fully processing the request, considering that it may not be practicable for those involved in processing the request to concentrate solely on the request, given other work commitments.

Section 12 Publicly Available Information

Section 12 provides:

12. Information to be provided apart from Act

(3) Assessed disclosure is the method of disclosure of last resort and –

…

(c) the principal officer of a public authority or a Minister may refuse an application made in accordance with section 13 if the information that is the subject of the application –

(i) is otherwise available; or
(ii) …

The information requested is available to the applicant at:

• https://www.health.tas.gov.au/sites/default/files/2022- 04/Tasmanian_Gender_Service_DoHTasmania2022.pdf
• https://www.health.tas.gov.au/health-topics/sexual-and-reproductive-health/tasmanian-gender-service- tgs

Section 33 Public interest test

Section 33 provides

Public interest test

(1) In this Division, information is exempt information if the principal officer of the public authority or Minister considers, after taking into account all relevant matters, that it is contrary to the public interest to disclose the information.

The section sets out how the decision maker determines if the disclosure of information is contrary to the public interest. For this the following matters of Schedule 1 have been applied in relation to the public interest test as required by s33:

Section 36 Personal Information

Section 36 provides:

Personal information of person

(1) Information is exempt information if its disclosure under this Act would involve the disclosure of the personal information of a person other than the person making an application under section 13.

The definition of personal information in s5 of the Act includes …any information or opinion in any recorded format about an individual whose identity is apparent or reasonably ascertainable from the information or opinion and who is alive, or has not been dead for more than 25 years.

Personal information can include a person’s name, address, telephone number, ³ date of birth, medical records, bank account details, taxation information ⁴ and signature. ⁵ Nevertheless the information needs to convey or say something about a person, rather than just identify them. Subsequently, where information that may seem individually harmless but capable of being combined with other pieces can generate a composite, a mosaic, which can be used to identify and say something about a person. ⁶ For example, the mere mention of a person’s name or signature may, however, reveal personal information about them depending on the context. ⁷

The extent to which the information is well known and the availability from publicly accessible sources 8 are matters to be given regard as part of the assessment.

It is, generally considered that the names and related information of State Service employees acting in the course of their duties and who are publicly identifiable will be disclosed if the person is not placed at risk by disclosure. 9

In ‘BA’ and Merit Protection Commissioner, ¹⁰ the Australian Information Commissioner reconsidered several earlier cases dealing with the disclosure of certain vocational information whereby:

… the notion of disclosure to the world at large has a different meaning with developments in information technology. It is now considerably easier for a person who has obtained information under the FOI Act to disseminate that information widely, to do so anonymously and to comment upon or even alter that information. …

… There is also a growing and understandable concern that personal information that is made available on the web can be misused or used differently by others …

These statements about the impact of technology and current attitudes to privacy, in particular, are relevant to employees’ personal information, regardless of whether they are public or private sector employees

In addition to the statements in ‘BA’, the disclosure of the identity of officers now has much greater privacy impacts than in the past. Before the broad community use of social media, the disclosure of an officer’s name on a document might have permitted an applicant to determine an individual’s telephone number or address. Today, an individual’s identity may be connected effortlessly with a vast range of personal information available through social networks, such as: photographs; friends’ and family members’ identities and photographs; employment histories; social activities and interests; personal opinions, including political opinions, and so on.

Under the Act, disclosure to an applicant of the information is considered to be, in effect, disclosure to the world at large because no restrictions can be placed on the use that may be made of the information to which access is given. ¹¹

Conversely, the Department of Health is a public authority that for business and security reasons does not display personal employee contact details in the public view function of the directory. ¹² Additionally, the area of work associated with the delivery of a health service warrants a cautionary approach to the management of personal information.

It is for this reason I am satisfied the information regarding the officers and other parties is personal information and exempt information.

The personal information regarding the subject of the request is not exempt information.

Public Interest

There has been drawn a distinction between the public interest in disclosure and matters that are of interest to members of the general public. The fact that there is a section of the public interested in a certain activity will not necessarily lead to the conclusion that disclosure of information relating to it will be in the public interest. ¹³

Public interest has been variously described as the sum of special interests, the sum of all private interests, the net result of individuals pursuing their self-interest, the broad shared interests of society, and the shared or collective values of the community – the goals or values on which there is consensus.

The meaning of the term was considered in some detail by the Full Court of the Federal Court of Australia in its decision McKinnon v Secretary, Department of Treasury ¹⁴ where Tamberlin J noted:

9. The expression in the public interest directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests…
10. The expression the public interest is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a