Recent Cases: Commonwealth

YJI v Australian Health Practitioner Regulation  [2023] VCAT 206

In 2017, YJI (“applicant”) made a notification to Australian Health Practitioner Regulation Agency (“AHPRA”) about a medical practitioner with whom he had previously been in a relationship.  So the Medical Board of Australia (“Board”) could consider the notification, AHPRA sought a response from the practitioner.  The practitioner’s lawyers provided two response letters: one (document 1) was not confidential and AHPRA provided it to the applicant outside any FOI process.  The other letter (document 2) indicated clearly on its face that confidentiality was expected and disclosed highly sensitive personal information about the practitioner and others.  

The notification was closed: there was no evidence to suggest that the practitioner’s actions were contrary to accepted standards.  AHPRA upheld its decision on reconsideration.  The applicant then sought both documents from AHPRA through FOI. 

APHRA decided both documents were exempt from release under ss 47E(d) and 47F of the Commonwealth FOI Act ("Cth FOI Act").  Following internal review, AHPRA released document 1 but affirmed its decision on document 2, also applying s 37(1)(c) of the Cth FOI Act.

Following review by the National Health Practitioner Ombudsman and Privacy Commissioner, which affirmed AHPRA’s decision, the applicant then sought review by the Victorian Civil and Administrative Tribunal (“Tribunal”).  Note, under the national regime involved, Victoria adopted the Cth FOI Act as applicable, but reviews are conducted  by our Victorian Tribunal applying the Cth FOI Act (not Victorian FOI Act).

Public interest conditional exemptions- certain operations of agencies: s 47E(d)

The Tribunal’s view was that document 2 had clearly been prepared by the practitioner, through her lawyers, to assist AHPRA undertake its functions.  Specifically, for it to assess the applicant’s notification about the practitioner’s performance (and conduct) and provide information to the Board to facilitate the Board’s decision making about that notification.  

The Tribunal accepted that it is important that third parties such as notifiers, practitioners and other government bodies be willing to provide information necessary to facilitate AHPRA and the Board’s efficient assessment of a notification.  The Tribunal acknowledged that this allows the Board to determine whether regulatory action is required to manage any risks posed by the relevant health practitioner’s health, conduct or performance on the basis of all the relevant information. 

The Tribunal ultimately found that if AHPRA were to disclose document 2, a reasonable person could conclude that highly sensitive information prepared for AHPRA/the Board in the future may not be treated with confidence.  This could then be reasonably expected to impact how effectively AHPRA and the Board may carry out their functions, as the information they are able to access may be less readily provided or more difficult to obtain.  The Tribunal was satisfied that document 2 was conditionally exempt under s 47E(d). 

Public interest conditional exemptions- personal privacy: s 47F 

While the applicant had a strong personal interest in the document, the Tribunal was not satisfied that disclosing the personal information would be reasonable.  In reaching this decision, the Tribunal considered the information was not well-known or available from public sources, and the person to whom the information related was not publicly known to be associated with the matters dealt with in the documents. 

It held that the circumstances of AHPRA’s collection and intended use of the information weighed strongly against disclosure.  There was a reasonable expectation that the document’s confidentiality would be maintained.  As the documented included highly sensitive personal information, the Tribunal found that disclosure under the FOI Act would represent a significant and unreasonable intrusion on the privacy of the practitioner and others. 

Disclosing the information, whether to the applicant or anyone else, would not advance the public interest in government transparency and integrity.  Considering its contents and the clearly expressed opposition of disclosure to the applicant, the Tribunal instead found that release of the document could reasonably be expected to have an adverse impact on trust in AHPRA to maintain confidentiality of information provided in similar circumstances. 

Public interest: s 11A (5)

The Tribunal noted the public interest factors in favour of and against disclosure.  In balancing these factors, the Tribunal was satisfied that those against disclosure far out-weighed those in favour.  It determined that providing access to the applicant of the conditionally exempt documents would be contrary to the public interest. 

Documents affecting enforcement of law and protection of public safety: s 37(1)(c)

The Tribunal did not make a decision on s 37(1)(c) but observed an unresolved question on whether having a reasonable expectation of danger to the psychological or emotional safety of a person, if the document is released to an applicant, comes within the statutory definition physical safety.  The Tribunal’s view was that this needed clarification in the legislation. 

HELD

The Tribunal affirmed AHPRA’s decision and held that document 2 was wholly exempt from disclosure under the FOI Act. 

'ADE' and Jobs and Skills Australia 2023] AICmr 15 

Facts

‘ADE’ (“applicant”) applied to Jobs and Services Australia (“respondent”) for access to documents relating to the respondent’s ‘scoring’ of engineering occupations as ‘Minor Group ‘233 Engineering Professionals’ in the Australian and New Zealand Standard Classification of Occupations, which is used to inform advice and decisions of the Australian Government on Skilled Migration Occupation Lists.  The applicant also sought any information that impacted the scoring, including a list of stakeholders consulted with.

Two documents fell within the scope of the request.  The respondent refused access to both in full.  Following the applicant’s application for IC review of the decision, it revised the decision under s 55G of the Cth FOI Act, giving access to the documents in part.  It decided that the documents were exempt in part under s 47E(d) of the Cth FOI Act. It is this decision that was considered on review by the Information Commissioner.

Issues

Certain operations of agencies – s 47E(d)

The respondent contended that the information contained in the documents comprised data and advice provided to it by other Australian Government agencies. It argued it received the information on the basis that it could not be shared with or released to third parties and that, if the materials were to be released where the respondent was not authorised to do so, it would be prejudiced in its ability to obtain the information in future. This would inhibit the respondent from providing the Australian Government with accurate assessments of whether occupations should be put on the Skilled Migration Occupation Lists.

Operations of an agency

The Commissioner was satisfied that the material in the documents involved the operation of an agency.  Under s 9 of the Jobs and Skills Act 2022 (“JS Act”), the respondent’s functions encompassed providing advice to the Australian Government regarding the composition of the Skilled Migration Occupations List.  Having reviewed the documents, the Commissioner found the materials related to the respondent’s analysis that would inform its advice to the Government.

Substantial adverse effect

The Commissioner considered whether disclosure of the documents would, or could reasonably be expected to, have a substantial adverse effect on the JSA’s analysis and provision of advice to the Australian Government in the composition of the Skilled Migration Occupation Lists.  

The Commissioner considered consultation responses from Commonwealth Government Departments about disclosure of the documents.  It was noted that the respondent does not have coercive statutory powers to compel information from agencies, instead it relies on other Commonwealth agencies to provide it with information.  However, the Commissioner stated that it was difficult to comprehend that Commonwealth agencies would refuse to utilize the respondent’s advice to develop and maintain the Skilled Migration Occupation Lists simply because information of the kind sought by the applicant might be disclosed through the Cth FOI Act.

In the Commissioner’s opinion, classification markings on the documents, which were to ensure they were not released or published, were not sufficient to substantiate the argument that they indicated agencies would object to the disclosure of the materials.  Secrecy provisions did not apply to the documents, and undertakings agreed to between the parties about the information, could not displace the operation of the FOI Act.  The Commissioner was not persuaded that Commonwealth agencies would or could in the future, be less willing to provide similar data and advice to the respondent, or that it would potentially have adverse effects on the respondent's ability to provide advice to the Australian Government.

Decision

Ultimately, the Commissioner was not persuaded the materials in dispute were conditionally exempt for the purposes of s 47E(d) of the FOI Act, and therefore was not required to consider the public interest test outlined in s 11A(5) of the FOI Act.