Right to Information No.: RTI202425-024

Right to Information Decision

Right to Information No.: RTI202425-024

Date of Application:     25 July 2024

Date of Decision:          27 November 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 19 August 2024 and accepted on 20 August 2024. 

The applicant consented to an extension of time. 

The information requested:

All internal correspondence related to meeting the government’s efficiency dividend, between November 1 2023 and July 24, 2024.

Please note that this application was almost identical to other applications received by the public authority at the same time, with only the period of time specified in the request differing. As such, the period was extended to encompass information responsive to widest ranging request, as demonstrated below:

Any information and correspondence related to meeting the government’s efficiency dividend, between 1 May 2023 and 31 July 2024.

Decision and Statement of Reasons

I have decided to release 156 pages of information to you, subject to exemptions under the Act. 

Section 36

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 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] 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.[4] For example, the mere mention of a person’s name or signature may, however, reveal personal information about them depending on the context.[5]

The extent to which the information is well known and the availability from publicly accessible sources[6] 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.[7]

In ‘BA’ and Merit Protection Commissioner,[8] 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.[9] Additionally, the area of work associated with the delivery of a health service warrants a cautionary approach to the management of personal information.

However, I also recognise that names of public officers performing their regular duties are not usually exempt under s36, unless there are exceptional circumstances. 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.[10] The public authority should be entitled to having direct contact from the public via the appropriately established channels.[11] For this reason I am satisfied the direct contact information of officers and other parties is personal information and 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.[12]

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[13] 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,[14] 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.[15]

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.[16]

The (a), (m), and (q) matters of Schedule 1 have been applied in relation to the Public Interest Test as required by s33 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 by the mere fact that disclosure of the information could create apprehension in the mind of the person concerned is enough to render disclosure unreasonable.[17]. 

I consider that for (q), disclosure would have an adverse effect on the industrial relations of the public authority. 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 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 35

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 –

(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.[18]

The expression deliberative processes in section 35 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.[19] 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.[20]

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.[21]

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;[22] or
• interim decisions or deliberations.

An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process. Furthermore, an opinion connotes a ‘view held about a particular subject or point; a judgement formed; a belief’.[23]

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;[24]
• procedural or day to day content;[25]
• the decision or conclusion reached at the end of the deliberative process;[26]
• 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.[27]

To be satisfied that this information is exempt under section 35(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, section 35(2) excludes from exemption any information which is purely factual information.

The Information Exempted Under Section 35

The information responsive to the request involves emails between executive staff outlining certain risks and approaches to risk, a draft minute by Health ICT on position and vacancy management, and records of discussions by the Budget and Finance Sub-Committee.

The emails are from the Secretary of the public authority. These emails are addressed directly to the public authority’s executive staff and senior management. I am satisfied that all of the information is directly related to the functions of a public authority or minister. In these emails, the Acting Secretary expresses an opinion as to the public authority’s current operating position, and the measures that he believes are necessary to address the current circumstances. The information contains both elements of actions taken, and recommendations, based upon opinion. 

The draft minute by HICT is a draft version of a Minute to inform senior executive of position and vacancy measures. The majority of its contents is entirely based on forming draft options as to the ability for HICT to manage positions within its area. These are not finalised courses of action and are deliberations on how best to address position and vacancy management. Very little of the document is factual, and where elements are factual, they are intertwined into the deliberative parts of the minute. 

The Budget and Finance Sub-Committee meeting papers contain minutes of the meetings that discuss potential savings strategies in consideration of the public authority’s budget. These minutes are normally published with the exception of those contents deemed to be redacted by the Chair, with the committee members agreeing. In this instance, upon reviewing the contents, the exemption information is the recording of thoughts, opinions, and potential actions that could be taken. These are inherently deliberative statements intended to record discussions of public officers before ‘deliberating, in common understanding’, and weighing the ‘competing arguments or considerations that may have a bearing upon one's course of action’.[28]

I have applied section 35 to those elements which are expressive of an opinion or provide deliberative foundation for a particular action. These, I consider, to involve the weighing up or evaluation of the arguments or considerations that may have a bearing on the course of action. 

I have also discussed the intertwined nature of fact and deliberation across the documents, and that it is impractical to severe fact and opinion/deliberation.[29]I have applied section 35 to those elements which are expressive of an opinion or provide deliberative foundation for a particular action. These, I consider, to involve the weighing up or evaluation of the arguments or considerations that may have a bearing on the course of action.[30] As discussed previously, 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 are considered ‘deliberative’ in nature. The public authority must be allowed to undertake robust deliberations and weigh up options without fear and provide frank advice about the issue. This aligns with the basis for section 35. The early thinking processes are intended to be covered by section 35, however, the section should not apply to those parts that express an already determined course of action, where that information is in itself severable from the internal deliberative material.[31] ‘Officers of public authorities should expect that communications made in the ordinary course of their duties might be made subject to disclosure under the Act and should still undertake their duties frankly and fearlessly despite this’.[32] I do not consider it to be in the public interest to withhold the decisions of government and its public authorities where those decisions directly affect the general public and are not captured by circumstances that warrant additional public interest concerns or confidentiality arising from other obligations. In this case, the deliberations relate directly to the internal management of the public authority’s budget and staffing to a level of detail that is not ordinarily released. These should be exempt so that public authority’s strategic priorities are protected.

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.

For these reasons, I am satisfied that parts of the information are exempt under section 35.

Public Interest[33]

For (a) and (d), I consider these to way in favour of disclosure. Information should be accessible to the general public, and that information may provide important context as to why a particular decision has been made. 

For matters (b), I consider this relevant and weighing in favour of disclosure. The provision of health services continues to be an important matter of public interest and debate. 

I consider (c) to be relevant here. While it does not give reasons for a decision being made that affect any one individual, it may assist in understanding an overarching decision that has been made regarding the practices of the public authority. 

I consider (f) and (g) to weigh in favour of disclosure. The information provides information relating to the public authority’s administrative processes and how it is making specific decisions. I do not believe disclosure would prevent participation and accountability. 

Schedule 1(1)(i) I consider weighing against disclosure in these circumstances. The information relates to the delivery of health services and how the public authority can manage its resources to appropriately deliver its primary purpose. Disclosure, in my view, would detrimentally affect the public authority’s ability to weigh up policy approaches to its internal management of finances and staffing to achieve those aims.

Schedule 1(1)(q) I consider weighing against disclosure. The information was circulated to the health executive for the purposes of informing them of changes to the public authorities hiring practices and the detailed management of its finances and budget. This impacts directly on the public authority’s own staff and also on its relationships with external employers/contractors that the public authority engages from time to time. The public authority should be entitled to go about these hiring practices and management of its detailed finance with the appropriate level of confidentiality to ensure its strategic aims are protected. 

Schedule 1(1)(s) weighs against disclosure as it relates directly to the public authority’s business affairs and has the potential to affect its ongoing relationships with third parties, disadvantage the public authority’s negotiating position with third parties (especially health service providers), and the public authority’s and third parties’ strategic plans in the state. 

I am satisfied that the release of exempted information is contrary to the public interest and have redacted accordingly.

Section 38

Section 33 Public interest test

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.[34] 

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.[35] 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.[36] 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 entire public authority and does not appear in the state’s budget papers at this level of detail. This information may impact directly on the public authority’s ability to manage strategic relationships with external parties and protect its bargaining position in an increasingly difficult market environment. The public authority should be entitled to go about the management of its detailed finances with the appropriate level of confidentiality to ensure its strategic aims are protected. Additionally, this information may 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.

Section 26 – Cabinet Information 

The information includes memos and correspondence from the Department of Treasury and Finance to the public authority. It provides direction as to the preparation of the 2024-25 State Budget, and how the public authority is to prepare its budget submissions for the purposes of deliberations by Treasury and Budget Committee. 

The memos and correspondence include reference to decisions or deliberations of Budget Committee. Budget Committee is a committee of Cabinet and therefore captured by the meaning of ‘the Cabinet’ in section 26 of the Act.

Where information references a decision of ‘the Government’ or ‘Budget Committee’, or it is information that derives from a decision of Cabinet where it would disclose that decision or deliberation, I consider this to satisfy section 26(1)(d) of the Act. While the memos and correspondence are not explicitly Cabinet records, release of this information would involve the disclosure of a deliberation or decision of the Cabinet and it is therefore exempt. I am satisfied that the information is not more than 10 years old and therefore not caught by section 26(2). 

Cabinet Information is exempt information not subject to the public interest test.

Section 27 – Internal Briefing Information of a Minister

The information includes information provided to the Minister for Health, Mental Health and Wellbeing outlining the proposed 2024-25 Budget savings measures. The purpose of this information was to inform the Minister of these measures prior to submission to Budget Committee. The information includes recommendations, opinions, and options proposed by the public authority for the purposes of the Minster’s consideration and approval. I am satisfied that this information was prepared by an officer of the public authority for the sole purpose of briefing the Minister on official business of the public authority and is connected to the Minister’s parliamentary duty. 

I am satisfied that this information is not more than ten years old. The information is almost entirely based upon estimates and opinions and therefore does not fall into purely factual information. 

The information is exempt pursuant to section 27 of the Act and is not subject to the public interest test.

Under s43 of the Act you have the right to apply for a review of the decision. To seek a review, you must apply in writing to the Secretary, Department of Health, GPO Box 125, HOBART TAS 7001, within 20 working days of receiving this notice. This request can be emailed to [email protected]