Right to Information No.: RTI202223-118
Right to Information No.: RTI202223-118
Date of Decision: 9 January 2023
An application made pursuant to the Right to Information Act 2009 (‘the Act’), received the Department of Health (“the public authority”) on 14 November 20s22 and accepted on 14 November 2022.
The applicant, pursuant to s15(4)(a) of the Act, agreed to grant an extension on the application for assessed disclosure.
The information requested:
Any information including advice received in developing the Public Health Direction- Additional Requirements for Certain Venues, which commenced on the 6th of December 2021.
This specifically includes:
[Request 1] Modelling basis, data, information, literature review and any related writeups and statutory declarations of qualified individuals certifying said information or similar - relating to the reduction in COVID case numbers and deaths as referenced in the premier’s response to me. REF MIN22/456.
[Request 2] Any information relating to the direction being introduced as a means to "encourage vaccination rates in the 20–30-year-old age group, due to it lagging behind", or similar as mentioned by the secretary during my phone call to the department on the 16th of February 2021.
[Request 3] Any communications or information relating to the legality of the declaration either sought internally or externally.
[Request 4] Any communications, including meeting minutes to relating to the enforcement of the declaration including with the state police, federal police or any representatives hither to.
[Request 5] Any information relating to the knowledge of or estimation of people who will be unable to continue employment or patronage at effected businesses.
[Request 6] Any information relating to the knowledge of or estimation of financial fallout of businesses whom will be unable to continue operation, or have a reduced capability due to the declaration. [Request 7] Any Information relating to the ongoing evaluation of the public health direction. including number of and nature of any complaints received either from internal or external sources.
[Request 8] Any information relating to the evaluation of the declaration once implemented. [Request 9] Any information relating to cases of Covid spread within venues with limited access for unvaccinated individuals as imposed by the public health direction – additional requirements during the enactment of the aforementioned declaration.
I have decided to respond to each request separately, numbered above.
Decision and Statement of Reasons
My decision is to refuse the request for information.
Section 12 Publicly Available Information
Section 12 provides:
12. Information to be provided apart from Act
(3) Assessed disclosure is the method of disclosure of last resort and –
(c) the principal officer of a public authority or a Minister may refuse an application made in accordance with section 13 if the information that is the subject of the application –
(i) is otherwise available; or
The information requested is available to the applicant at:
- Coronavirus (COVID-19) – CDNA National Guidelines for Public Health Units | Australian Government Department of Health and Aged Care
- Australian Health Protection Principal Committee (AHPPC) | Australian Government Department of Health and Aged Care
- Communicable Diseases Network Australia (CDNA) | Australian Government Department of Health and Aged Care
- Public Health Laboratory Network (PHLN) | Australian Government Department of Health and Aged Care
- Vaccination numbers and statistics | Australian Government Department of Health and Aged Care
Requests, 2, 5, 6 and 8
Decision and Statement of Reasons
My decision is that the information requested is not in the possession of the public authority.
All reasonable steps have been taken to find the information referred to in your request, however the search found no information.
The search included consultation with Legal Services, Public Health and Emergency Coordination Centre where staff members searched their file management systems and database.
I am satisfied the consultation undertaken and the search conducted was thorough and all reasonable steps have been taken to locate the information relevant to your request.
If you believe on reasonable grounds that there has been an insufficiency in the searching for and the provision of information in relation to your application, under section 45 of the Act, you have the right to apply for an External Review with the Ombudsman. To seek a review, you must apply in writing to Ombudsman Tasmania. An online application and contact details are available at: www.ombudsman.tas.gov.au/right-to-information
Decision and Statement of Reasons
My decision is that the information sought is exempt under the Act, as outlined below.
Section 31 Legal professional privilege
Section 31 provides:
Legal professional privilege
Information is exempt information if it is of such a nature that the information would be privileged from production in legal proceedings on the ground of legal professional privilege.
For legal professional privilege to attach, the information need only to have been brought into existence for the dominant purpose of giving or receiving legal advice.
It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.1
The exempt information contained in pages 1249 to 1262 consist of communications for and subsequent provision of advice to the public authority concerning a matter. The confidentiality of the communications has been maintained and accordingly I am satisfied that the information at issue meets the conditions to be exempt information pursuant to s31 of the Act.
Section 31 is not subject to the s33 public interest test.
Request 4 – s35 Deliberative Info
Decision and Statement of Reasons
My decision is that the information sought is exempt under the Act, as outlined below. Section 35 provides
35. Internal deliberative information
(I) 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.2
The expression deliberative processes in s35 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.3 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.4
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.5
A deliberative process may include the recording or exchange of:
- a collection of facts or opinions, including the pattern of facts or opinions considered;6 or
- interim decisions or deliberations.
An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process.
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;7
- procedural or day to day content;8
- the decision or conclusion reached at the end of the deliberative process;9
- 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.10
To be satisfied that this information is exempt under s35(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 s35(2) excludes from exemption any information which is purely factual information.
The information consists of handwritten notes and a series of email exchange between officers of a public authority discussing various COVID-19 matters. I am satisfied the information has been generated by officers of public authorities for the purpose of providing advice and as a record of consultations. The email exchanges forms part of the deliberative process comprising exchange of views about a draft while moving towards a determined outcome. The information is for the deliberative process comprising advice and as a record of consultation is sufficient to meet the requirement of s35(1).
While the information that is the subject of the exchange comprises factual information, this information is closely linked and inextricably bound up with the decision-maker’s deliberative processes.11 While I am satisfied the handwritten notes taken by a public officer do contain some factual information, I am not satisfied that it is sufficiently separate from the deliberative material to be considered purely factual information for the purposes of s35.
I am satisfied that the information consists of opinion, advice or recommendation for the purpose of the deliberative processes related to the official business of the public authority.
The final version of the management guidelines and safety in schools plan is a concluded position following the deliberative process. This information is not exempt.
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 am satisfied that some of the information is exempt under s35.
Requests 7 and 9
Decision and Statement of Reasons
My decision is to refuse to provide the information sought, as outlined below.
This information cannot be produced in its entirety from the Department’s electronic computer systems as it is in a format that is not searchable. Retrieval and collation of this information would require a substantial and unreasonable diversion of resources. The information held by the Department concerning the request for information is held against the individual file of the patient. Attempts to retrieve the historical information has proven to be challenging and hence pursuant to s10 of the Act (electronic information) the request is refused.
(1) If information is stored in an electronic form, a Minister or public authority may refuse an application under section 13 if –
(a) the information cannot be produced using the normal computer hardware and software and technical expertise of the public authority; and
(b) producing it would substantially and unreasonably divert the resources of the public authority from its usual operations, having regard to the factors in Schedule 3.
Having regard to the factors under Schedule 3 of the Act:
Clause 1(a): the terms of the request, especially whether it is of a global kind or a generally expressed request, and in that regard whether the terms of the request offer a sufficiently precise description to permit the public authority or
Minister, as a practical matter, to locate the document sought within a reasonable time and with the exercise of reasonable effort.
The request being of a global kind the ability to locate the information cannot be undertaken in a reasonable time without dedication of resources.
Clause (b): whether the demonstrable importance of the document or documents to the applicant might be a factor in determining what in the particular case are a reasonable time and a reasonable effort.
Even though the applicant is a private citizen, and the information is in connection with COVID-19 mandatory vaccinations for certain venues, the consideration under Schedule 3 may diminish somewhat due to this fact but I am not convinced that the weight of importance of the application to the applicant outweighs the utilisation of resources in further assessing the application.
Clause 1(c): more generally whether the request is a reasonably manageable one, giving due, but not conclusive, regard to the size of the public authority or Minister and the extent of its resources available for dealing with applications.
In this context, the resources to be considered are the existing resources required to process the request consistent with attendance to other priorities.12 It does not refer to the whole of the resources or possible resources it may temporarily be able to obtain to assist in processing the request.13 Therefore, the resources to be considered are those which would have to be used in:
- manually identifying the information in the Department’s electronic computer systems;
- identifying, locating and collating the information from the computer system;
- deciding whether to grant, refuse or defer access to the information or edited information, including resources to be used in examining the information;
- extracting the information; and
- notifying the applicant of any interim or final decision on the request.
The advice of the information custodian in relation to the application is that it may take the dedication of one officer more than five workdays in collecting the information. Such resources cannot be made available for this request without significantly affecting the other work of both the information custodian and the delegated officer under the Act. I further consider that the diversion of resources would be substantial taking account of the number of other Right to Information requests on hand.
Clause 1(d): the public authority’s or Minister’s estimate as to the number of sources of information affected by the request, and by extension the volume of information and the amount of officer-time, and the salary cost.
The advice from the information custodian is that the request will involve an officer being dedicated to manually review the database. A test undertaken demonstrated that the task might take more than five working days. Both the amount of officer-time and salary cost in collating and then assessing the information would therefore be considerable and, in my view, an unreasonable diversion of resources.
Clause 1(e): the timelines binding the public authority or Minister.
The applicant has demonstrated generosity in granting an extension of time for the assessment of requests that cover similar subject matter. Even if the applicant granted additional time for assessing this request, the time dedicated to this application would consequently influence the timelines for other requests.
Clause 1(f): the degree of certainty that can be attached to the estimate that is made as to sources of information affected and hours to be consumed, and in that regard importantly whether there is a real possibility that processing time might exceed to some degree the estimate first made.
The information custodian undertook a test exercise in searching for the information the estimate quoted is likely to be greater.
Clause 1(g): the extent to which the applicant has made other applications to the public authority or Minister in respect of the same or similar information or has made other applications across government in respect of the same or similar information, and the extent to which the present application might have been adequately met by those previous applications.
The applicant has not submitted any other Right to Information applications; however, the applicant has requested information from the Department previously and has been responded to.
Clause 1(h): the outcome of negotiations with the applicant in attempting to refine the application or extend the timeframe for processing the application.
Negotiations were not entered, nevertheless, this does not modify my view that assessing this application would substantially and unreasonable be a diversion of resources.
Clause (i): the extent of the resources available to deal with the specified application.
The information custodian has limited resources available to set aside for an officer to dedicate time in sourcing the information while the delegated officer has existing applications still to be assessed.
I further find that the diversion of resources to provide the information would be unreasonable. While the matters listed in Schedule 3 of the Act must be considered when assessing if the processing of an application would result in a substantial and unreasonable diversion of resources, it is not a complete statement of the matters, which may be relevant. In making this decision, I have therefore considered all the facts and circumstances including:
- the number, type and volume of information falling within the scope of the request;
- the complexity of the request; and
- the work time involved in fully processing the request, considering that it may not be practicable for those involved in processing the request to concentrate solely on the request, given other work commitments.
1 Daniels Corporation International Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at page 552.
2See Re JE Waterford and Department of Treasury (No 2)  AATA 67. See also Carver and Fair Work Ombudsman  AICmr 5.
3see Re Waterford and Department of Treasury (No. 2) (1984) 5 ALD 588
4Dreyfus and Secretary Attorney-General’s Department (Freedom of information)  AATA 962 .
5See Re Murtagh and Commissioner of Taxation  AATA 249, Re Reith and Attorney-General’s Department  AATA 437, Re Zacek and Australian Postal Corporation  AATA 473.
6See Chapman and Minister for Aboriginal and Torres Strait Islander Affairs  AATA 210
7See Re VXF and Human Rights and Equal Opportunity Commission  AATA 107.
8See Subramanian and Refugee Review Tribunal  AATA 31.
9 See Chapman and Chapman and Minister of Aboriginal and Torres Strait Islander Affairs  AATA 210; British American Tobacco Australia Ltd and Australian Competition and Consumer Commission  AICmr 19; Briggs and the Department of the Treasury (No. 3)  AICmr 22.
11See Re Evans and Ministry for the Arts (1986) I VAR 3 15.
10Dreyfus and Secretary Attorney-General’s Department (Freedom of information)  AATA 962 .
12Re SRB and SRC and Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 at 179; the Full Commonwealth Administrative Appeals Tribunal on the meaning of “resources”, the subject of section 24 of the Freedom of Information Act 1982 (Cth) (the equivalent to section 19 of the RTI Act (Tas)).
13(1994) 33 ALD 171 at 179.