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Right to Information Decision
Right to Information No.: RTI202425-098
Date of Application: 24 September 2024
Date of Decision: 5 December 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 30 September 2024 and accepted on 30 September 2024. The applicant consented to an extension of time.
The information requested:
KP Shaw Health Capability Review for the RHH Department of Medical Imaging.
Decision and Statement of Reasons
I have decided to release 76 pages of information to you, subject to exemptions under the Act.
Section 38
Section 33 Public interest test
| 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)(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. 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.[3]
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 contains information about its costs and invoices related to the delivery of imaging services through third party providers. 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 intention of the report is to identify available efficiencies within the RHH, and this information being released to third party providers may allow them to see costs or price estimates. This would not be conducive to the report’s overall purpose.
I am satisfied that the information is exempt pursuant to section 38.
Schedule
| Page | Document | Exemption |
|---|---|---|
| 1-4 | DMI Clinical Service Plan Report | Nil |
| 5 | DMI Clinical Service Plan Report | Section 38 – Business Information |
| 6-13 | DMI Clinical Service Plan Report | Nil |
| 14-15 | DMI Clinical Service Plan Report | Section 38 – Business Information |
| 16-65 | DMI Clinical Service Plan Report | Nil |
| 66-67 | DMI Clinical Service Plan Report | Section 38 – Business Information |
| 68-76 | DMI Clinical Service Plan Report | Nil |