Right to Information No.: RTI202223-171

Right to Information Decision No.: RTI202223-171

Date of Decision:          17 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 15 December 2022 and accepted on 16 December 2022.

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

The information requested:

Pursuant to the Right to Information Act 2009 we seek the following documents in the possession of the Tasmanian Department of Health.

Note: In this request, “Local Outbreaks” means outbreaks or occurrences of COVID-19, or discoveries of the virus SARS-CoV-2, in particular geographic areas within Tasmania such as cities, postcodes, or local government areas.

1. Documents prepared by, provided to, or otherwise considered by the following persons:
   (i) Darren Hine, the State Controller at the relevant time, when deciding to make the Public Health Act 1997 Authorisation Under Sesction 40 and Exercise of Authorisation 20 March 2020;
   (ii) Scott McKeown, the Director of Public Health at the relevant time, when deciding to make the Public Health Act 1997 Directions under Section 16 of 23 March 2020;
   (iii) Mark Veitch, the Director of Public Health at the relevant time, when deciding to make the Public Health Act 1997 Declaration of Public Health Emergency – COVID-19 of 24 March 2020;
   (iv) Mark Veitch, the Director of Public Health at the relevant time, when deciding to make the Public Health Act 1997 Directions under Section 16 – COVID-19 of 26 March 2020;
   (v) Mark Veitch, the Director of Public Health at the relevant time, when deciding to make the Public Health Act 1997 Directions under Section 16 – COVID-19 of 27 March 2020;
   (vi) Mark Veitch, the Director of Public Health at the relevant time, when deciding to make the Public Health Act 1997 Directions under Section 16 – COVID-19 of 30 March 2020;
   (vii) Mark Veitch, the Director of Public Health at the relevant time, when deciding to make the Public Health Act 1997 Directions under Section 16 – COVID-19 of 2 April 2020; and
   (viii) Peter Gutwein, Premier of Tasmania at the relevant time, when deciding to make the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2010 – Notice under Section 17 of 2 April 2020.
    
2. Containing information relating to Local Outbreaks, including:
   (i) Briefing packs provided to Scott McKeown, Mark Veitch and Peter Gutwein and Annexures thereof
   (ii) Summaries provided to Scott McKeown, Mark Veitch and Peter Gutwein;
   (iii) Analysis or recommendations regarding the Local Outbreaks;
   (iv) Recommendations arising from the Local Outbreaks that suggested Scott McKeown, Mark Veitch and Peter Gutwein ought to make a certain order;
   (v) Any reasons for decision or records thereof.

I have decided to respond to each request separately, numbered above ([1] and [2]).

Decision and Statement of Reasons

My decision is to refuse the request for information.

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.gazette.tas.gov.au/editions/2020/march_2020/21954_-_Special_23_March_2020.pdf
• https://www.gazette.tas.gov.au/editions/2020/march_2020/21955_-_Special_24_March_2020.pdf
• https://www.gazette.tas.gov.au/editions/2020/march_2020/21957_-_Special_27_March_2020.pdf.pdf
• https://www.gazette.tas.gov.au/editions/2020/march_2020/21959_-_Special_31_March_2020.pdf
• https://www.gazette.tas.gov.au/editions/2020/april_2020/21961_-_Special_3_April_2020.pdf
• https://www.gazette.tas.gov.au/editions/2020/april_2020/21963_-_Special_3_April_2020.pdf
• https://www.health.gov.au/health-alerts/covid-19
• https://www.health.gov.au/resources/foi-disclosure-log?search=covid&related_minister=All

Section 27 Internal Briefing Information of a Minister

Section 27 provides:

Internal briefing information of a Minister

1. Information is exempt information if it consists of –

(a) an opinion, advice or a recommendation prepared by an officer of a public authority or a Minister; or
(b) a record of consultations or deliberations between officers of public authorities and Ministers –

in the course of, or for the purpose of, providing a Minister with a briefing in connection with the official business of a public authority, a Minister or the Government and in connection with the Minister's parliamentary duty.

2. Subsection (1) ceases to apply after the end of the period of 10 years commencing on the date of the creation of the information referred to in that subsection.
3. Subsection (1) does not include information solely because it –

(a) was submitted to a Minister for the purposes of a briefing; or
(b) is proposed to be submitted to a Minister for the purposes of a briefing –

if the information was not brought into existence for submission to a Minister for the purposes of a briefing.

4. Subsection (1) does not include purely factual information unless its disclosure would reveal the nature or content of the opinion, advice, recommendation, consultation or deliberations of the briefing.
5. Nothing in this section prevents a Minister from voluntarily disclosing information that is otherwise exempt information.

This section provides that information that is internal briefing information of a Minister in connection with official business or parliamentary duties, for instance opinions, advice or recommendations prepared for

Ministers or consultations or deliberations between Officers and Ministers is exempt information for the first 10 years of its existence. It does not include purely factual information unless disclosure would disclose opinions, advice, recommendations, consultations or deliberations of a Minister that has not been officially published, nor does it stop a Minister from voluntarily disclosing information that is otherwise exempt information.

I am satisfied the briefings provide an opinion, advice and recommendations prepared by an officer of a public authority, being the pubic authority. The requirements of s27(l)(a) are met.

I am also satisfied that this information has been prepared in the course of, or for the purpose of, providing the Minister for Health with a briefing in connection with the official business of the public authority and the Minister, and is also in connection with the Minister's parliamentary duty. This information meets the requirements of s27(l).

I am satisfied that as the remaining information is not more than 10 years old the requirements of s27(2) are not met. In terms of s27(3), I am satisfied that the information was brought into existence for submission to a Minister for the purposes of a briefing to that Minister and hence the requirements of s27(3) are not met.

Thus, neither provision prevents s27(1) from applying here.

Section 27(4) provides purely factual information is not exempt under s27(1). As to the meaning of purely factual information, I refer to Re Waterford and the Treasurer of the Commonwealth of Australia (No 1),¹ where the Commonwealth Administrative Appeals Tribunal (AAT) observed that the word purely has the sense of simply or merely and that the material must be factual in fairly unambiguous terms.

Further, for purely factual information not to be exempt, it must be capable of standing alone as such. The material must not be so closely linked or intertwined with the deliberative process so as to form part of it.² This means that even though a documents contents may be in part factual, this intertwining may lead to the document as a whole being covered by the ministerial briefing exemption.

In terms of s27(4) I note the briefings contain factual information, but I consider it is inextricably linked to the other information, such that its disclosure would reveal the nature or content of the opinion, advice or recommendations.

It is for these reasons I find the information to be exempt.

Public Interest

Section 27 is not subject to the s33 public interest test.

Section 31 Legal professional privilege

Section 31 provides:

Legal professional privilege

Information is exempt information if it is of such a nature that the information would be privileged from production in legal proceedings on the ground of legal professional privilege.

For legal professional privilege to attach, the information need only to have been brought into existence for the dominant purpose of giving or receiving legal advice.

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.³

The exempt information contained in pages 1249 to 1262 consist of communications for and subsequent provision of advice to the public authority concerning a matter. The confidentiality of the communications has been maintained and accordingly I am satisfied that the information at issue meets the conditions to be exempt information pursuant to s31 of the Act.

Public Interest

Section 31 is not subject to the s33 public interest test

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.
2. The matters which must be considered in deciding if the disclosure of the information is contrary to the public interest are specified in Schedule 1 but are not limited to those matters.

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 35 Internal deliberative information

Section 35 provides

35. Internal deliberative information

1. Information is exempt information if it consists of –
   (a) an opinion, advice or recommendation prepared by an officer of a public authority; or
   (b) a record of consultations or deliberations between officers of public authorities; or
   (c) a record of consultations or deliberations between officers of public authorities and Ministers –

in the course of, or for the purpose of, the deliberative processes related to the official business of a public authority, of a Minister or of the Government.

2. Subsection (1) does not include purely factual information.
3. Subsection (1) does not include –
   1. a final decision, order or ruling given in the exercise of an adjudicative function; or
   2. a reason which explains such a decision, order or ruling.

4. Subsection (1) ceases to apply after 10 years from the date of the creation of the information referred to in that subsection.

The definition of an officer in relation to a public authority in s5 of the Act includes …a member of the public authority, a member of the staff of the public authority and any person employed by or for the public authority, whether or not that person is a State Service officer or State Service employee.

I am satisfied the information was prepared by officers of a public authority.

A deliberative process involves the exercise of judgement in developing and selecting from different options:

The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.⁴

The expression deliberative processes in s35 refers to pre-decisional thinking processes within a public authority as it moves towards the making of a decision or towards embarking upon a course of action.⁵ This thinking generally refers to the process of weighing up or evaluating competing arguments or considerations – the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.⁶

The deliberative process must relate to the functions of a public authority or minister. The functions of a public authority include both policy making and the processes undertaken in administering or implementing a policy. The functions also extend to the development of policies in respect of matters that arise in the course of administering a program. The non-policy decision making processes required when carrying out agency, ministerial or governmental functions, may also be deliberative processes.⁷

A deliberative process may include the recording or exchange of:

• opinions;
• advice;
• recommendations;
• a collection of facts or opinions, including the pattern of facts or opinions considered;⁸ or
• interim decisions or deliberations.

An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process.

Deliberative matter does not include purely factual material like operational information. Material that is not deliberative matter, would include:

• content that is merely descriptive;
• incidental administrative content;⁹
• procedural or day to day content;¹⁰

• the decision or conclusion reached at the end of the deliberative process;¹¹
• matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process.

The exclusion of purely factual information is intended to allow disclosure of information used in the deliberative process. A conclusion involving opinion or judgement is not purely factual material. Similarly, an assertion that something is a fact may be an opinion rather than purely factual material.

Purely factual information does not extend to factual information that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.¹²

To be satisfied that this information is exempt under s35(l) specifically, consideration must be given that it consists of opinion, advice or recommendation prepared by a public officer in the course of, or for the purposes of the deliberative processes of a public authority and, amongst other things, that it does not contain purely factual information.

As noted, s35(2) excludes from exemption any information which is purely factual information.

I am satisfied the information is part of the deliberative process relating to the official business of the public authority as part of the pre-decisional process consisting of opinion, advice or recommendation or a record of consultation.

The information is exempt under s35.

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 Treasury¹⁴ 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

determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination...

The High Court considered the phrase public interest in O’Sullivan v Farrer,¹⁵ and described it as:

... the expression in the public interest, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only …in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view…

Who may be considered the relevant public when public interest is at issue has also been considered by the High Court, which found that the public need not include the entire population, but rather, it may include only the interests of a substantial section of the public.¹⁶

What is not in the public interest is easier to list:

• private interests;
• personal interests;
• personal curiosity;
• personal opinions;
• parochial interest; and
• partisan political interests.

The above list has been categorised as motivation type issues by the NSW Ombudsman where focus on the private, personal or partisan interests of the decision-maker (and possibly also those of third parties), or distinguishing between decisions made in good faith (ie, honesty, for the proper purpose and within power) from those made in bad faith. The meaning of the term, or approach, indicated by the use of the term, is to direct consideration away from such interests towards matters of broader concern.

So, the public interest test requires a balancing of the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper workings of government and its agencies on the other.¹⁷

The (a), (b), (m), and (q) matters of Schedule 1 have been applied in relation to the Public Interest Test as required by s33.

I accept that the disclosure of the information reflects public interest with the community having an understanding of and an involvement in the democratic processes (a). I note there has been interest regarding COVID-19 that has attracted media interest (b). The deliberative information includes personal information whereby disclosure would harm the interests of the individuals that are discussed (m). Consideration of the effect must bear on the public authority’s operations, that is, the public authority is undertaking its expected activities in an expected manner. The candour of officers is essential when a public authority is undertaking an investigation and assessment of young persons that are under a care. In such cases officers may be reluctant to provide information and cooperate with investigators if they were aware that the subject matter would be disclosed. The actions of officers that impeded or hamper the operations of the public authority should be viewed as creating an adverse effect (q).

Furthermore, the exchanges regarding a draft response does not represent a final decision and in my view, this outweighs the public interest. I am guided in this view: