Right to Information No.: RTI202223-063
Right to Information No.: RTI202223-063
Date of Decision: 9 November 2022
An application made pursuant to the Right to Information Act 2009 (‘the Act’), received the Department of Health (“the public authority”) on 27 June 2022 and accepted on 18 July 2022.
The information requested:
- I'd like to request hospitalisations (general and ICU) and deaths WITH and OF Covid:
a. Age stratified x vaccination dose x comorbidities. Please see the attached image for reference. Please provide one table for each metric: WITH Covid and OF Covid, respectively
- Please provide the department's reasoning for mixing data for hospitalisations and deaths in the case of vaccination dosages 2-5+. Why are 0 and 1 dose separated but the 2+ group mixed together?
You further requested the following table to be completed:
My decision is not to disclose the requested information.
However, in relation to your second request, the tracking of vaccinations was for mapping the rate of uptake; the first and second doses were recorded for this purpose and third and fourth doses were not reported separately but grouped together under a generic heading.
Statement of Reasons
Section 10 Electronic Information
This information cannot be produced in its entirety from the Public Authority’s Digital Medical Record system as it is in a format that is not searchable and is kept under each patient name and not as a whole database.
Retrieval and collation of this information would require a substantial and unreasonable diversion of resources. The information held by the Public Authority concerning the request for information is held against the individual file of the tenant. Attempts to retrieve the information has proven to be challenging and hence pursuant to s10 of the Act (electronic information) the request is refused.
- 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.
The applicant is member of the public and 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 priorities1. 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 request2.
Therefore, the resources to be considered are those which would have to be used in:
- manually identifying the information in the Digital Medical Records system;
- 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 ten 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 both 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 refused an extension of time for the application, however, 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 other applications.
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 entered into, and the applicant refused an extension of time for processing of the application, nevertheless, even if the applicant provided an extension of time, 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;
- the work time involved in fully processing the request, taking into account that it may not be practicable for those involved in processing the request to concentrate solely on the request, given other work commitments.
For the reasons stated above, I have therefore decided to refuse to provide the information, in accordance with s10 of the Act.
Section 33 Public interest test
Section 33 provides
Public interest test
- 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.
- 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:
the general public need for government information to be accessible;
whether the disclosure would promote or harm the interests of an individual or group of individuals;
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. 1
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 2 where Tamberlin J noted:
- 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…
- 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,3 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.4
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.5
The (a) and (m) matters of Schedule 1 have been applied in relation to the Public Interest Test as required by s33 to the personal information of the information custodian.
I accept that the disclosure of the information reflects public interest with the community having an understanding of and an involvement in the democratic processes. I am satisfied the information held by the public authority should be accessible (a).
However, as to matter (m), I consider disclosure would harm the interests of third parties by the mere fact that disclosure of the information could create apprehension in the mind of the person concerned is enough to render disclosure unreasonable. 6.
In my view, it is contrary to the public interest to disclose the information relating to third parties.
Section 36 Personal Information
Section 36 provides:
Personal information of person
(1) Information is exempt information if its disclosure under this Act would involve the disclosure of the personal information of a person other than the person making an application under section 13.
The definition of personal information in s5 of the Act includes …any information or opinion in any recorded format about an individual whose identity is apparent or reasonably ascertainable from the information or opinion and who is alive, or has not been dead for more than 25 years.
Personal information can include a person’s name, address, telephone number,7 date of birth, medical records, bank account details, taxation information8 and signature. 9 Nevertheless the information needs to convey or say something about a person, rather than just identify them. Subsequently, where information that may seem individually harmless but capable of being combined with other pieces can generate a composite, a mosaic, which can be used to identify and say something about a person.10 For example, the mere mention of a person’s name or signature may, however, reveal personal information about them depending on the context.11
The extent to which the information is well known and the availability from publicly accessible sources 12 are matters to be given regard as part of the assessment.
It is, generally considered that the names and related information of State Service employees acting in the course of their duties and who are publicly identifiable will be disclosed if the person is not placed at risk by disclosure. 13
In ‘BA’ and Merit Protection Commissioner,14 the Australian Information Commissioner reconsidered several earlier cases dealing with the disclosure of certain vocational information whereby:
… the notion of disclosure to the world at large has a different meaning with developments in information technology. It is now considerably easier for a person who has obtained information under the FOI Act to disseminate that information widely, to do so anonymously and to comment upon or even alter that information. …
… There is also a growing and understandable concern that personal information that is made available on the web can be misused or used differently by others …
These statements about the impact of technology and current attitudes to privacy, in particular, are relevant to employees’ personal information, regardless of whether they are public or private sector employees
In addition to the statements in ‘BA’, the disclosure of the identity of officers now has much greater privacy impacts than in the past. Before the broad community use of social media, the disclosure of an officer’s name on a document might have permitted an applicant to determine an individual’s telephone number or address. Today, an individual’s identity may be connected effortlessly with a vast range of personal information available through social networks, such as: photographs; friends’ and family members’ identities and photographs; employment histories; social activities and interests; personal opinions, including political opinions, and so on.
Under the Act, disclosure to an applicant of the information is considered to be, in effect, disclosure to the world at large because no restrictions can be placed on the use that may be made of the information to which access is given. 15
Conversely, the Department of Health is a public authority that for business and security reasons does not display personal employee contact details in the public view function of the directory. 16 Additionally, the area of work associated with the delivery of a health service warrants a cautionary approach to the management of personal information.
It is for this reason I am satisfied the information regarding the officers and other parties is personal information and exempt information.
1Re 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.
2 FCAGFC 142
3 168 CLR 210
4Sinclair v Maryborough Mining Warden  HCA 17; (1975) 132 CLR 473
5Harris v Australian Broadcasting Corporation (1983) 5 ALD 54S
6Akers v Victoria Police (No 1)  VCAT 397; Koch v Swinburne University  VCAT 1513 at .
7See Re Green and Australian and Overseas Telecommunications Corporation  AATA 252.
8See Re Murtagh and Commissioner of Taxation  AATA 249 and Re Jones and Commissioner of Taxation  AATA 834
9See Re Corkin and Department of Immigration & Ethnic Affairs  AATA 448.
10See Re McKnight and Australian Archives  AATA 225.
11See Re Veale and Town of Bassendean  WAICmr 4.
12See Re Jones and Federal Commissioner of Taxation  AATA 413.
14 AICmr 9 (30 January 2014)
15see Re Australia First Party (NSW) Inc. and Department of Commerce  WAICmr 32.
16See http://www.directory.tas.gov.au/help6.html#What Agencies don't display information in the Public View?