Right to Information No.: RTI202425-027
Right to Information No.: RTI202425-027
Right to Information No.: RTI202425-027
Date of Decision: 30 September 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 25 July 2024 and accepted on 26 July 2024.
The applicant consented to an extension of time in accordance with section 15 of the Act.
The information requested:
Since 14 June, any minute or advice related to staffing vacancy control.
Decision and Statement of Reasons
I have decided to release 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.
I note that decision information ‘part 1’ and ‘part 2’ contains redactions labelled ‘Personal Information (s36)’. These have been redacted by agreement with the applicant and are not removed as exempted information subject to the public interest. The information behind the redactions labelled as ‘Personal Information (s36)’ contains individual position numbers and personal employee numbers, contact details, general personal details and circumstances which would make those staff members clearly identifiable and trackable. The applicant expressed that they did not wish to receive information that would identify staff’s personal circumstances, contact information, and HR matters.
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:
Schedule1(1)(a) | the general public need for government information to be accessible; |
Schedule1(1)(b) | whether the disclosure would contribute to or hinder debate on a matter of public interest; |
Schedule1(1)(c) | whether the disclosure would inform a person about the reasons for a decision; |
Schedule1(1)(d) | whether the disclosure would provide the contextual information to aid in the understanding of government decisions; |
Schedule1(1)(f) | whether the disclosure would enhance scrutiny of government decision-making processes and thereby improve accountability and participation; |
Schedule1(1)(s) | whether the disclosure would harm the business or financial interests of a public authority or any other person or organisation; |
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.
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.[1]
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.[2] 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 where they would also be characterised as disadvantaging its competitiveness in the market.[3] In this case, the exempt information is internal budgets of specific areas of the public authority or funding sources and commitments from third parties. These would not be reported at this level of detail in public documents and reporting (such as the State Budget), especially in real time. If disclosed, the information is likely to lead to a competitive disadvantage as potential contractors with whom costs of services are to be negotiated by the public authority will be unfairly aware of the current available spending and funding arrangements with other third parties.
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 in communicating internal budget reporting or representative of budget positions of a large proportion of the public authority’s business areas. It also contains reference to funding sources from third parties.
I am satisfied that the information is exempt pursuant to section 38.
Section 27 – Internal briefing information of a Minister
Section 27 provides
27. 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.
I have exempted the first dot point at page 28 of Part 2, as it expresses information from the public authority and the Minister that is not purely factual and is entirely for the purposes of briefing the Minister.
Section 35 – Internal Deliberative 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 s33:
Schedule 1(1)(a) | the general public need for government information to be accessible; |
Schedule 1(1)(b) | whether the disclosure would contribute to or hinder debate on a matter of public interest; |
Schedule 1(1)(c) | whether the disclosure would inform a person about the reasons for a decision; |
Schedule 1(1)(d) | whether the disclosure would provide the contextual information to aid in the understanding of government decisions; |
Schedule 1(1)(f) | whether the disclosure would enhance scrutiny of government decision-making processes and thereby improve accountability and participation; |
Schedule 1(1)(g) | whether the disclosure would enhance scrutiny of government administrative processes; |
Schedule 1(1)(i) | whether the disclosure would promote or harm public health or safety or both public health and safety; |
Schedule 1(1)(q) | whether the disclosure would have a substantial adverse effect on the industrial relations of a public authority; |
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.[1]
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.[2] 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.[3]
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.[4]
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;[1] 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’.[2]
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;[3]
- procedural or day to day content;[4]
- the decision or conclusion reached at the end of the deliberative process;[5]
- 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.[6]
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.
I have previously discussed the nature of the information earlier, where I outlined the information responsive to the requests. 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.[7] I am satisfied that the information in which I have applied section 35 redactions 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 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.[1] 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.[2] ‘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’.[3] 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.
The information consists of two paragraphs that references information that has not been made publicly available or available to staff. It conveys an opinion based on a report and proposes a recommendation on staffing a specific position. I have not exempted the recommendation contained within the document; however, the paragraphs contain advice and an opinion leading to this recommendation. I consider it to be deliberative material to assist in reaching a conclusion and I am satisfied it reaches the standard required to exempt it under section 35.
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.[4]
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[5]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,[1] 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.[2]
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.[3]
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. This information 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.
Schedule 1(1)(q) I consider weighing against disclosure. The paragraph directly references, and therefore would disclose, information has not been circulated to wider staff or the public. The paragraphs contain recommendations and opinions that would impact directly on the public authority’s own staff, its relationships with external employers/contractors that the public authority engages from time to time, and its management of its facilities.
Therefore, I am satisfied that the release of exempted information is contrary to the public interest and have redacted accordingly.
Schedule of Documents
Part 1
Page | Description | Exemptions |
1-177 | Ongoing Vacancy Committee Minute Tracker – Ending 5 August 2024 | Personal Information – By agreement Section 38 – Business Information |
Part 2
Page | Description | Exemptions |
1-2 | Email to Vacancy Committee | Personal Information – By agreement |
3-8 | Business Case on NUM staffing | Nil |
9 | Business Case on NUM staffing | Section 35 – Internal Deliberative |
10 | Business Case on NUM staffing | Nil |
11-12 | Email to Vacancy Committee | Personal Information – By agreement |
13-14 | Letter to ANMF | Personal Information – By agreement |
15-24 | Parliamentary Brief – Question Time | Nil |
25 | Parliamentary Brief – Question Time | Personal Information – By agreement |
26-27 | Job card | Personal Information – By agreement |
28 | Ministerial Briefing | Section 27 – Internal Briefing to Minister |
29-34 | Ministerial Briefing | Nil |
35 | Ministerial Briefing | Personal Information – By agreement |
36-47 | Emails to Vacancy Committee | ersonal Information – By agreement |
[1] Forestry Tasmania v Ombudsman [2010] TASSC 39, [51].
[2] Ibid.
[3] Ibid, [52].
[4] See Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67. See also Carver and Fair Work Ombudsman [2011] AICmr 5.
[5] see Re Waterford and Department of Treasury (No. 2) (1984) 5 ALD 588
[6] Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18].
[7] 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.
[8] See Chapman and Minister for Aboriginal and Torres Strait Islander Affairs [1996] AATA 210
[9] Re Murtagh and Commissioner of Taxation [1984] AATA 249, [13].
[10] See Re VXF and Human Rights and Equal Opportunity Commission [1989] AATA 107.
[11] See Subramanian and Refugee Review Tribunal [1997] AATA 31.
[12] 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.
[13] Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18].
[14 ] See Re Evans and Ministry for the Arts (1986)
[15] Murtagh v Federal Commissioner of Taxation (1984) 54 ALR 313, 320.
[16] This approach aligns with that of purely factual material as explicit in the Act and discussed in Harris (n 16). Where the internal deliberative elements of the information are severable from the exempt information, they should not be captured by the exemption. Additionally, this was discussed in Linda Poulton v Department of Justice 29 April 2024 [Ombudsman Tasmania R2202-110], [113]-[114].
[17] Linda Poulton v Department of Justice 29 April 2024 [Ombudsman Tasmania R2202-110], [114].
[18] 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.
[19] [2005] FCAGFC 142
[20] [1989] 168 CLR 210
[21] Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473
[22] Harris v Australian Broadcasting Corporation (1983) 5 ALD 54S