Right to Information No.: RTI202324-085

Right to Information No.: RTI202324-085

Date of Decision:          20 October 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 14 August 2023 and accepted on 15 August 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. Reports, reviews, summaries, recommendations, advice, policies, guidelines, meeting minutes and agendas, or other documents created by or for the Tasmanian Department of Health or Royal Hobart Hospital (including their respective officers, agents, employees or contractors) on or after 1 January 2018 relating to medical treatments or procedures performed on or provided to Children Born with Intersex Variations under the age of 16 years that involve the modification of their sex characteristics, namely:

a) processes or procedures for obtaining authorisation, advice or guidance in respect of those procedures;

b) processes or procedures for seeking informed consent, whether from the individual or their parents or legal guardians;

c) the recommended timing of those procedures;

d) the risks and benefits associated with those procedures;

e) the risks and benefits associated with delaying or deferring those procedures until the individual is able to provide personal consent;

f) the claiming of Medicare benefits in relation to those procedures;

g) reviews on outcomes of those procedures, including short or long term health consequences.

h) case referral documents relating to cases involving these procedures;

i) case summaries of cases involving these procedures;

j) reports or recommendations made in relation to specific cases involving these procedures;

k) templates, forms or application documents relating to those procedures;

or

l) ethical frameworks, terms of reference and any other guidance materials

relating to those procedures.

I will deal with requests a) to f) and j) to l) as ‘Request 1’ and g) to i) as ‘Request 2’

Application Fee

The prescribed application fee was waived in accordance with:

s16(2)(c) (the applicant is able to show that he or she intends to use the information for a purpose that is of general public interest or benefit).

Request 1

Decision 

My decision is to disclose some information, subject to exemptions under the Act. 

I note that another public authority is leading a reference group called “Whole of Government Reference Group for Tasmania's Lesbian, Gay, Bisexual, Transgender and Intersex Community”.

Statement of Reasons

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 public 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.

Request 2

Decision and Statement of Reasons

All reasonable steps have been taken to find the information referred to in your request, however the search found no information. I consulted with officers in Government Relations and Strategic Policy, Office of the Deputy Secretary, Hospitals and Primary Care, Health Information Management Services, Corporate Records and Office of the Secretary.

I am satisfied the consultation undertaken and the search conducted was thorough and all reasonable steps have been taken to locate the information relevant to your request. The public authority does not complete specific case summaries, case referrals, or reviews relating to medical treatment or procedures performed on or provided to Children Born with Intersex Variations under the age of 16. 

My decision is that the information requested is not in the possession of the public authority.

Schedule of Documents 

RIF          Released in Full

PE           Partially Exempt

FE           Fully Exempt

OOS       Out of Scope