Lilly at this stage indicated it would not be exercising its further appeal rights but Mr Whitely, still dissatisfied, took the matter to the Tribunal.In Whitely and Department of Health and Ageing AATA 338 the Tribunal was presented with an additional and compelling argument for refusal of access to all 11 documents in their entirety: the documents were exempt under section 38 of the act because disclosure was an offence under section 135A of the National Health Act, a provision listed in Schedule 3 of the FOI act. No other considerations are relevant. Secrecy provisions listed in schedule 3 of the FOI act in effect trump FOI rights of access. The Tribunal agreed, noting it had no power to grant access to the documents.
Perhaps the Department of Health knew all along that this was the case, preferring to rely on ss 43 and 45 and not section 38 in refusing access because the FOI Guidelines—Exemption Sections in the FOI Act (FOI Exemption Guidelines)- prepared by the Australian Government Solicitor, express the policy position:
9.1.4 Section 38 should be used only where truly necessary, lest it become a means of exempting information more appropriately considered, for example, under ss 41, 43 or 45 of the Act.In the AAT, government policy notwithstanding, the Tribunal's role is to make the correct or preferable decision. Lawyers acting for the Department now ran section 38 up and bingo. While Whitely had a chance to argue public interest in disclosure to a degree if the business affairs exemption was in the frame, he had no chance if s 38 was found to be relevant.This hadn't been a consideration when the AAT proceedings were initiated.
Section 135A, like hundreds of secrecy provisions in Commonwealth acts has no harm from disclosure element. It reads:
(1) A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions under the Medicare Australia Act 1973 or the medical indemnity legislation, and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first-mentioned person in the performance of duties, or in the exercise of powers or functions, under this Act.
Penalty: $5,000 or imprisonment for 2 years, or both.
Section 38 and schedule 3 didn't rate mention or action in the recent FOI reform debates. Over to the comprehensive review of the act due in two years or so...
Meanwhile documents requested by Mr Whitely remain safe and secure at the Department and with Eli Lilly:
- All documents provided to the PBAC in their determination that Strattera® should be placed on the PBS.
- Documentation outlining specific consideration given by the PBAC regarding Strattera’s black box warnings for suicidal ideation.