Right to Information No.: RTI202324-510

Right to Information No.: RTI202324-510

Date of Decision:          13 August 2024 

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 June 2024 and accepted on 14 June 2024. 

The applicant consented to an extension of time in accordance with section 15 of the Act.

The information requested:

1. Within the last two months, any minute to the Secretary related to any of the hospital emergency departments. 

Decision and Statement of Reasons

I have decided to release 14 pages of information to you, subject to exemptions under the Act. 

A schedule of documents can be found at the end of the statement of reasons. 

Section 36 – Personal Information

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 section 33:

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,[1] date of birth, medical records, bank account details, taxation information[2] and signature.[3]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.[4]

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. [5] This is also the case if decisions and associated information are to be published on the public authorities website for members of the public. The public authority should be entitled to having direct contact from the public via the appropriately established channels.[6] For this reason I am satisfied the direct contact information of officers and other parties is personal information and exempt information
 

Public Interest

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 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.[7]

Schedule 1 

The (a), (m), and (q) matters of Schedule 1 have been applied in relation to the Public Interest Test as required by section 33 to the personal information of the information custodian.

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 am satisfied the information held by the public authority should be accessible (a).

However, as to matter (m), I consider disclosure would harm the interests of third parties. Staff of the public authority, as well as other third parties, should be entitled to expect that contact with the public authority will be through appropriate channels. The Ombudsman has also emphasised these points in recent decisions. The disclosure of direct contact points or personal contact information is not in the public interest.[8] Staff of the public authority may be concerned by the potential for harassment or unsolicited contact, which is enough to render disclosure unreasonable.[9]

I consider that for (q), disclosure would have an adverse effect on the industrial relations of the public authority. Industrial relations cover 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 individual public authority officers directly outside the public authority’s preferred contact points.

In my view, it is contrary to the public interest to disclose the direct contact information relating to third parties. 

Section 38 – Business Affairs of the Public Authority

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 section 33:

Section 38 - Information relating to the business affairs of public authority

Section 38 provides

38.   Information relating to business affairs of public authority

Information is exempt information –

(a) if it is –

(i) a trade secret of a public authority; or

(ii) in the case of a public authority engaged in trade or commerce, information of a business, commercial or financial nature that would, if disclosed under this Act, be likely to expose the public authority to competitive disadvantage; or

(b) if it consists of the result of scientific or technical research undertaken by or on behalf of a public authority, and –

(i) the research could lead to a patentable invention; or

(ii) the disclosure of the results in an incomplete state would be likely to expose a business, commercial or financial undertaking unreasonably to disadvantage; or

(iii) the disclosure of the results before the completion of the research would be likely to expose the public authority or the person carrying out the research unreasonably to disadvantage; or

(c) if it is contained in –

(i) an examination, a submission by a student in respect of an examination, an examiner's report or any such similar record; and

(ii) the use for which the record was prepared has not been completed.

The Supreme Court of Tasmania has discussed the previous iteration of section 38 based in the Freedom of Information Act 1991 (Tas) in Forestry Tasmania v Ombudsman, in which Justice Porter observed, at [51], that, 

It is not always the case that government agencies operate in a competitive market environment; they may be a monopoly provider. In both cases, the agencies may wish to guard commercially sensitive information just as zealously as private undertakings.[10] 

The court also reasoned that it would be an improper construction of the words to suggest that the premise of competitive disadvantage to be entirely based upon profit and the private market. [11] I agree with this point here, as this would essentially put aside the majority of the public authorities to which the Act applies as they do not operate for profit. Instead, a broader construction should be adopted. 

Section 38 is intended to protect commercially sensitive information or ‘trade secrets’ of the public authority. This information would competitively disadvantage the public authority if disclosed. ‘Trade secrets’ may be understood to contain pricing, quotes, contractual terms, and financial statements. Whether an application produces information that may competitively disadvantage the public authority is often a question of fact to be determined by the administrative decision‑maker.[12] In this case, the exempt information is internal financial statements of the Launceston General Hospital that are not normally published. 

Schedule 1

I have considered the following elements of Schedule 1 specifically for the purposes of section 38: 

Schedule 1 (a), (b), (c), (d), and (f) I consider weigh in favour of disclosure. Overall, these deal with the public’s right to information being available so that they may take an active role in the processes of government. I agree that these weigh in favour of disclosure in most cases. 

I consider (s) to weigh against disclosure for the same reasons I previously discussed concerning Forestry Tasmania v Ombudsman, as it relates to the information harming the business or financial interests of the public authority or of any other person or organisation. The exempt information is specific and forms part of the internal budget reporting of the Launceston General Hospital for the current financial year and does not appear in the state’s budget papers at this level of detail. Additionally, this information could form the basis of some of the public authority’s budget submissions and should be afforded a level of confidentiality that is appropriate with the process of forming the budget. 

I am satisfied that the information is exempt pursuant to section 38.