Right to Information No.: RTI202223-044

Right to Information No.: RTI202223-044

Date of Decision:           11 November 2022

Information Requested

An application made pursuant to the Right to Information Act 2009 (‘the Act’), was received by the Department of Health (“the public authority”) on 25 August 2022 and accepted on 29 August 2022.

Pursuant to s15(4) of the Act, the applicant agreed to grant an extension of time for the public authority to make a decision on the application.

The information requested:

Report conducted externally, likely by Deloitte, into procurements and contracting within the Hyperbaric diving and medicine unit.

Decision

My decision is not to disclose the requested information.

Statement of Reasons

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:

Schedule 1(1)(a)	the general public need for government information to be accessible
Schedule 1(1)(d)	whether the disclosure would provide the contextual information to aid in the understanding of government decisions
Schedule 1(1)(m)	whether the disclosure would promote or harm the interests of an individual or group of individuals
Schedule 1(1)(n)	whether the disclosure would prejudice the ability to obtain similar information in the future
Schedule 1(1)(p)	whether the disclosure would have a substantial adverse effect on the management or performance assessment by a public authority of the public authority's staff
Schedule 1(1)(q)	whether the disclosure would have a substantial adverse effect on the industrial relations of a public authority

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. 1

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 ² 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,³ 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.⁴

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.⁵

The matters of Schedule 1 have been applied in relation to the Public Interest Test as required by s33. I find two matters in favour of disclosure (a) and (d). I find four matters in favour of non-discloure (m), (n) (p) and (q).

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.

I accept that there is a need for government information of this type, in general terms, to be publicly available (a) and in this instance would provide the contextual information to aid in the understanding of the decision making (d).

However, this needs to be balanced against those factors weighing against release.

The public interest is in the context of operational matters within public health. As noted, the information comprises advice and a record of consultations. 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:

…when one officer submits a draft to another, it is an expression of opinion, recommendation or advice as to the appropriateness of the proposed draft. It is contrary to the public interest to disclose documents which upon due consideration, the proposed signatory has regarded as wholly inappropriate for dispatch or inappropriate for dispatch save in an altered form.⁶

The information request refers to a report conducted by Deloitte, I note this report is in draft form.

To release the draft report would reveal deliberative information that would reasonably lead to notes or other deliberative records being difficult to obtain in future as a result of officers not rigorously recording their thoughts

(n). This would do nothing to promote good practice or enhance scrutiny.

The information contains professional assessment and commentary. If the public authority officers become aware that their communication and comments on such matters were to be provided these officers may not be as open and frank in their communications as they otherwise would. This would have a significant adverse effect on the public authority’s ability to manage sensitive matters (p).

Industrial relations covers the operation of the public authority. The public authority maintains specific channels for the public at large to make contact. The disclosing of names and other details would enable members of the public to contact public authority officers directly outside the public authority’s preferred contact points.

The predicted 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 and assessment. In such cases officers may be reluctant to provide information and cooperate if they were aware that the subject matter would be disclosed (q).

It is for these reasons I am satisfied that it is not in the public interest for the Draft Report to be disclosed.

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 –

(a) a final decision, order or ruling given in the exercise of an adjudicative function; or
(b) 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.

A deliberative process involves the exercise of judgement in developing and making a selection 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.⁷

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.8 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.⁹

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.¹⁰

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;¹¹ 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;¹²
• procedural or day to day content;¹³
• the decision or conclusion reached at the end of the deliberative process;¹⁴
• 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.¹⁵

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 draft report has been generated by officers of public authorities for the purpose of providing advice and recommendations.

The information is for the deliberative process comprising advice and as a record of consultation is sufficient to meet the requirement of s35(1).

While the information that is the subject of the request comprises factual information, this information is closely linked and inextricably bound up with the decision-maker’s deliberative processes. ¹⁶ While I am satisfied the draft report contains some factual information, I am not satisfied that it is sufficiently separate from the deliberative material to be considered purely factual information for the purposes of s35.

I am satisfied that the information consists of opinion, advice or recommendation for the purpose of the deliberative processes related to the official business of the public authority.

Section 35(4) further excludes from exemption any information that is older than 10 years. It is clear from the information before me that the information at issue is not older than 10 years.

I am satisfied that the information is exempt under s35.

 

 

¹ Re Public Interest Advocacy Centre and Department of Community Services and Health (Na l) (1991) 14 AAR 180 at 187; Re Angel and Department of Arts,Heritage and Environment (1985) 9 ALO 113.

² [2005] FCAGFC 142

³ [1989] 168 CLR 210

⁴ Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473

⁵ Harris v Australian Broadcasting Corporation (1983) 5 ALD 54S

⁶ Re City Parking Pty Ltd v City of Melbourne (1996) 10 VAR.

⁷ See Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67. See also Carver and Fair Work Ombudsman [2011] AICmr 5.

⁸ see Re Waterford and Department of Treasury (No. 2) (1984) 5 ALD 588

⁹ Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18].

¹⁰ See Re Murtagh and Commissioner of Taxation [1984] AATA 249, Re Reith and Attorney-General’s Department [1986] AATA 437, Re Zacek and Australian Postal Corporation [2002] AATA 473.

¹¹ See Chapman and Minister for Aboriginal and Torres Strait Islander Affairs [1996] AATA 210

¹² See Re VXF and Human Rights and Equal Opportunity Commission [1989] AATA 107.

¹³ See Subramanian and Refugee Review Tribunal [1997] AATA 31.

¹⁴ See Chapman and Chapman and Minister of Aboriginal and Torres Strait Islander Affairs [1996] AATA 210; British American Tobacco Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19; Briggs and the Department of the Treasury (No. 3) [2012] AICmr 22.

¹⁵ Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18].

¹⁶ See Re Evans and Ministry for the Arts (1986) I VAR 3 15.