LEX 62926 & LEX 64862IR
Revised decision made under section 55G of the Freedom of Information
Act 1982
Decision and reason for decision of Joshua (Position Number 62331110), Acting Director,
Information Access Unit, Client and Information Access Branch, Department of Veterans’ Affairs
Applicant:
Mr Alan Ashmore
Date of primary decision:
25 January 2024
LEX reference number:
LEX 62926 & LEX 64862IR
Revised decision date:
28 August 2024
Revised decision reference number:
MR24/00542
Dear Mr Ashmore,
Freedom of Information Request: LEX 62926 & LEX 64862IR
1. The purpose of this correspondence is to advise you of a revised decision the Department of
Veterans’ Affairs (
Department) has made under section 55G of the
Freedom of Information
Act 1982 (
FOI Act) in relation to LEX 62926 & LEX 64862IR.
Revised Decision
2. I have made a decision to vary the original decision made by Jesse (Position Number
62371652), Information Access Officer, Information Access Unit, Client and Information
Access Branch. That decision was to grant access in part to one (1) document bundle.
3. The Department has undertaken a reasonable search of its records and identified twelve (12)
documents, combined into one (1) document bundle relevant to your request.
4. Additional y in compiling the document bundle, it was found that there were blank pages
and these have been removed. This would mean that the page numbering at the bottom
associated with some of the documents might not be completely sequential as a result of
the removals. If you would like to have a copy with the blank pages included, please let us
know.
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5. I have made a decision to grant access in part to an edited copy of the document bundle,
modified by deletions in accordance with section 22(2) of the FOI Act and the applicable
exemption provision, as set out in
Schedule 1.
Authority to make decision
6. I, Joshua (Position Number 62331110), Acting Director, Information Access Unit, Client and
Information Access Branch, am an officer authorised by the Secretary of the Department to
make decisions about access to documents in the possession of the Department in
accordance with section 23(1) of the FOI Act.
Summary
7. On 28 November 2023, you made a request for access to documents in the possession of the
Department. Your request sought access to:
‘…
BACKGROUND:
In the Veterans’ Mates Report – 2004-2010 reference is made to a study,
“Pharmaceutical brand substitution in Australia: Identifying factors associated with
having multiple brand substitutions.” It notes, “Ethical approval to conduct the
study was obtained from the DVA Human Research Ethics Committee.”
INFORMATION I AM SEEKING:
I am seeking all background documentation and the formal approval of DVA's
Human Research Ethics Committee to conduct the study, “Pharmaceutical brand
substitution in Australia: Identifying factors associated with having multiple brand
substitutions…’
8. On 25 January 2024, the primary decision maker made a decision to grant part access to one
(1) document bundle.
9. On 31 January 2024, you requested an internal review of the primary decision. In your
request, you advised:
‘…I am writing to request an internal review of Department of Veterans' Affairs's
handling of my FOI request 'MATES - Ethical approval of specific study'.
My specific request was, "I am seeking all background documentation and the formal
approval of DVA's Human Research Ethics Committee to conduct the study,
“Pharmaceutical
brand substitution in Australia: Identifying factors associated with having multiple
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brand substitutions. .”
I note receipt of some of the requested documents and note as part of the "all
background documentation," some was missing. I note background documentation
would have to include the formal application to conduct the study that I note was
approved by DVA Ethics Committee.…’
10. On 2 March 2024, the internal review decision deemed, thereby affirming the original
decision in accordance with section 54D of the FOI Act.
11. On 24 May 2024, the Office of the Australian Information Commissioner (
OAIC) sent the
Department a notice under section 54Z of the FOI Act advising that it had commenced a
review of the Department’s decision.
12. On 27 June 2024, the Department advised the OAIC of its intention to issue you with a
revised decision in accordance with section 55G of the FOI Act.
Material taken into account
13. In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based, and the reasons for my decision to
grant access in part to the documents.
14. I have taken the following material into account in making my decision:
the terms of your request on 28 November 2023 and the primary decision on 25
January 2024;
the terms of your internal review request on 31 January 2024 and the deemed internal
review decision on 2 March 2024;
the terms of your request for external review through the OAIC;
the types of documents that are in the possession of the Department;
the content of the documents that fal within the scope of your request;
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the fol owing provisions of the FOI Act relevant to
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my decision:
- Section 11B Public interest exemption – factors
- Section 15 Request for Access
- Section 22 Access to edited copies with exempt or irrelevant material deleted
- Section 47 Documents disclosing trade secrets or commercially valuable
information
- Section 47F Public interest conditional exemptions--personal privacy
- Section 55G Procedure in IC review--revocation or variation of access refusal
decision
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines).
15. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
16. I have decided to grant access in part to the documents, subject to the fol owing exemption
in accordance with the FOI Act.
Documents disclosing trade secrets or commercial y valuable information (section 47)
17. Section 47 of the FOI Act provides that a document is an exempt document if its disclosure
would disclose:
(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.
18. It is my view that section 47 of the FOI Act applies to both documents. In assessing if section
47 applies, I have considered:
• whether the information contained in the documents is trade secrets or the valuable
commercial information of another individual or organisation;
• whether the information, if disclosed to a competitor would be liable to cause real or
significant harm to the owner of the information;
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• the extent to which the information is known only to the department or third party
for whom it has value or, if it is known to others, to what extent that detracts from its
intrinsic commercial value;
• whether the information confers a competitive advantage on the department or
third party to whom it relates;
• whether a genuine ‘arms-length’ buyer would be prepared to pay to obtain that
information; and
• whether the information is still current or out-of-date.
19. Following consultation with the relevant business area as well as University of South
Australia (UniSA), I find that the document contains valuable commercial information in the
form of the information and methodology within the submission to the Human Research
Ethics Committee as wel as within the PhD Research proposal.
20. The brief and methodology, which was developed by UniSA to facilitate the conduct of
research by its staff was made with significant investment to ensure the value of the
information to its ongoing research functions. This value is from its ongoing business viability
and that value would be reasonably expected to diminish or be destroyed if disclosed to
parties outside of those whom the document’s owner has currently given access. The
ongoing nature of the research would lead to the information being current.
21. Accordingly, I have decided that the relevant information in the document is exempt under
section 47(1)(b) of the FOI Act.
22. As section 47 of the FOI Act is not a conditional exemption, I am not required to consider a
public interest test.
Public interest conditional exemptions--personal privacy (section 47F)
23. Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
would involve the unreasonable disclosure of personal information about any person
(including a deceased person).
24. Section 4 of the FOI Act provides that personal information has the same meaning as in the
Privacy Act 1988 (Cth) (
Privacy Act). Personal information is defined in section 6 of the
Privacy Act as:
. .information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
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(a)
whether the information or opinion is true or not;
(b)
whether the information or opinion is recorded in a material form or not.
25. The elements of ‘personal information’ are:
(a)
it relates only to a natural person (not, for example, a company);
(b)
it says something about the individual;
(c)
it may be in the form of an opinion, it may be true or untrue, and it may form
part of a database;
(d)
the individual’s identity is known or is reasonably ascertainable using the
information in the document.
26. If information is personal information, it will be conditionally exempt if disclosure would be
‘unreasonable’. In considering whether disclosure would be unreasonable, section 47F(2) of
the FOI Act requires me to take into account:
(a)
the extent to which the information is wel known;
(b)
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
(c)
the availability of the information from publicly accessible sources; and
(d)
any other matter I consider relevant.
27. The document outlined in
Schedule 1 contains third party information, and the surname and
contact details of departmental staff. This information meets the above definitions of
‘personal information’ relating to these individuals.
28. I find that disclosure of the document would reveal information about a third party
individual and interfere with that individual’s right to privacy. The information in the
document is not publicly known or otherwise accessible in the public domain. It is likely the
individual concerned would not wish for the information to be disclosed without their
consent. Given the personal and confidential nature of the communications in the
document, I consider disclosure of this information to be unreasonable.
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29. The Department has policies and procedures to support staff within its operating
environment and to meet its obligations as an employer to provide a safe working
environment. Some policies restrict the amount of identifying information generally
provided by individual staff members to clients. As outlined above, staff are generally
required to identify themselves in correspondence with clients by a given name and position
number. This reduces the likelihood that individuals are reasonably identifiable in a different
context. For example, it reduces the likelihood that a private social media profile can be
linked with an individual who is a staff member of the Department.
30. I consider that disclosure of personal information of individual staff members in both
documents would be unreasonable because it would be inconsistent with Departmental
policies and procedures designed to support a safe and efficient working environment.
Additional y, it would be unreasonable because it would be contrary to the expectations of
individual staff members, who may rely on those Departmental policies and procedures for
assurance of their personal privacy.
31. I also find that disclosure of the personal information of the third party could unreasonably
affect their privacy as a reasonable person would not expect such information to be put in
the public domain. Release of personal information within the document would not add any
substance to the information being provided under this request and there would be no
public purpose achieved through the release of the personal information. Further, it is likely
the individual concerned would not wish for the information to be disclosed without their
consent.
32. Accordingly, I have decided that parts of both documents which are listed as exempt in
accordance with this provision in
Schedule 1, meet the criteria for conditional exemption
under section 47F of the FOI Act. Where a document is assessed as conditional y exempt,
access must be given subject to the public interest test in accordance with section 11A(5) of
the FOI Act, discussed below.
Application of the public interest test – section 47F
33. Section 11A(5) of the FOI Act provides that an agency must give access to a document if it is
conditionally exempt at a particular time unless (in the circumstances) access to the
document would, on balance, be contrary to the public interest.
34. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the fol owing factors which favour disclosure:
a) disclosure would promote the objects of the FOI Act; and
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b) disclosure would increase scrutiny of government activities.
35. I also considered the fol owing factors which do not
favour disclosure:
(a)
disclosure could be expected to adversely affect the delivery of services by the
Department in accordance with its functions;
(b)
disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy, both in relation to the third-party individuals and staff
of the Department.
36. I have placed greater weight on the factors against disclosure and find that disclosure of the
staff and third parties’ personal information could reasonably be expected to result in
interference with the privacy of the individuals by enabling them to be identified in their
private lives.
37. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am therefore satisfied that the public
interest is to withhold the exempt material.
38. I am satisfied that no irrelevant factor has been considered as set out in section 11B(4) of
the FOI Act.
Delete exempt material from documents and provide access to edited copies (section 22)
39. The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.
40. As explained above, the documents contain exempt information. The documents also
contain irrelevant or out-of-scope information.
41. On this basis, I have prepared the documents for release by removing exempt and irrelevant
material in accordance with section 22 of the FOI Act. The material that has been edited for
release is marked within the document and at
Schedule 1.
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Access to documents
42. The document bundle released to you in accordance with the FOI Act is enclosed.
Information Publication Scheme
43. The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.
44. I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request will be published on the Department’s
FOI Disclosure Log, which can be accessed at:
http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.
Application for Information Commissioner Review – request to withdraw application
45. Given the Department has now granted you access to documents in scope of your request,
we seek your views regarding withdrawing your application for review before the OAIC.
46. We confirm that we will provide the OAIC with a copy of this revised decision in accordance
with section 55G(2)(a) of the FOI Act.
Your rights of review
47. If you are dissatisfied with my revised decision, you may advise the OAIC that you do not
wish to withdraw your application for IC Review.
48. You can contact the OAIC in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Email:
xxxxxxxxx@xxxx.xxx.xx
In person: Level 3, 175 Pitt Street, Sydney NSW 2000
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49. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the Office of the Australian Information Commissioner:
http://oaic.gov.au/freedom-of-information/foi-resources/freedom-of-information-fact-
sheets/foi-factsheet-12-your-review-rights
Contact us
50. If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Joshua (Position Number 62331110)
Acting Director
Information Access Unit
Client and Information Access Branch
Department of Veterans’ Affairs
28 August 2024
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LEX 62926 & LEX 64862IR
Schedule 1
Schedule of documents
Applicant:
Mr Alan Ashmore
Decision date:
28 August 2024
FOI reference number:
LEX 62926 & LEX 64862IR
Doc Date of
Document description
Pages Decision Exemption
No. document
provision
1.
Various LEX 66766 - Document bundle
1-254 Release s 22, s 47,
in part
s 47F
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LEX 62926 & LEX 64862IR
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
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Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the fol owing:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
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(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
11B Public interest exemptions — factors
Scope
(1)
This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).
(2)
This section does not limit subsection 11A(5).
Factors favouring access
(3)
Factors favouring access to the document in the public interest include whether access to
the document would do any of the fol owing:
(a)
promote the objects of this Act (including al the matters set out in sections 3 and
3A);
(b)
Inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Irrelevant factors
(4)
The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
(b)
access to the document could result in any person misinterpreting or
misunderstanding the document;
(c)
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made;
(d)
access to the document could result in confusion or unnecessary debate.
Guidelines
(5)
In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.
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Requests for access (as related to the requirements for requests)
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Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
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Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
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(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
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Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shal :
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
47
Documents disclosing trade secrets or commercial y valuable information
(1)
A document is an exempt document if its disclosure under this Act would disclose:
(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.
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(2)
Subsection (1) does not have effect in relation to a request by a person for access to a
document:
(a)
by reason only of the inclusion in the document of information concerning that
person in respect of his or her business or professional affairs; or
(b)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an undertaking where the person
making the request is the proprietor of the undertaking or a person acting on
behalf of the proprietor; or
(c)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an organisation where the person
making the request is the organisation or a person acting on behalf of the
organisation.
(3)
A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a
local government authority.
Public interest conditional exemptions
47F
Public interest conditional exemptions—personal privacy
General rule
(1)
A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(a)
the extent to which the information is well known;
(b)
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
(c)
the availability of the information from publicly accessible sources;
(d)
any other matters that the agency or Minister considers relevant.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
Access given to qualified person instead
(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document of the agency,
or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or
her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case may
be) that the disclosure of the information to the applicant might be detrimental to
the applicant’s physical or mental health, or well-being.
(5)
The principal officer or Minister may, if access to the document would otherwise be given
to the applicant, direct that access to the document, so far as it contains that information,
is not to be given to the applicant but is to be given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of qualified
person in subsection (7), as the first-mentioned qualified person; and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may be
exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.
(7)
In this section:
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qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their
well-being, and, without limiting the generality of the foregoing, includes any of the
following:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsellor;
(e)
a social worker.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
55G
Procedure in IC review--revocation or variation of access refusal decision
(1) An agency or Minister may vary (or set aside and substitute) an access refusal decision (the
original decision ) in relation to a request or an application under section 48 at any time
during an IC review of the access refusal decision if the variation or substitution (the revised
decision ) would have an effect of:
(a) giving access to a document in accordance with the request; or
(b) relieving the IC review applicant from liability to pay a charge; or
(c) requiring a record of personal information to be amended or annotated in
accordance with the application.
Note: When making the revised decision, a consultation requirement under section 26A
(documents affecting Commonwealth-State relations etc.), 27 (business documents)
or 27A (documents affecting personal privacy) may apply.
(2) If an agency or Minister varies (or sets aside and substitutes) an access refusal decision
under subsection (1):
(a) the agency or Minister must, in writing, notify the Information Commissioner as
soon as practicable after the agency or Minister makes the variation or
substitution; and
(b) the Information Commissioner must deal with the IC review application for review
of the original decision as if it were an IC review application for the review of the
varied or substituted decision, subject otherwise to this Part.
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Document Outline
