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Monday, March 07, 2011

NeHTA not a FOIer

When posing the question the other day about what other government related entities, like NBN Co (until amending legislation passes), are outside the scope of the Commonwealth Freedom of Information Act, I was unaware of the exchange below during the course of questioning of officers of the Office of Australian Information Commissioner in Senate Estimates. Their evidence is no one has a reliable list of who's covered and who's outside the Commonwealth act. I suspect that a similar situation applies in the states with respect to state legislation.

The confirmation that the National E-Health Transition Authority (NeHTA) is not covered by the FOI act despite the fact that annual reports on the operation of the act have for years past listed it as subject to the act, again raises the question: what other entities are out there carrying out important public functions with large amounts of public money that should be subject to the highest standards of transparency and accountability, but aren't?

NeHTA is a company limited by guarantee, established in 2005 by the Australian,State and Territory Governments, with those entities as Members.The board consists of  the CEOs of the various commonwealth and state health departments and a couple of independent directors. It clearly exists to advance public purposes and is responsible among other things, for the healthcare identification service.It received member (state and federal government) contributions of $95 million last year. The accounts are audited by a private firm not the Auditor General and refer to Corporations Act, not public sector standards.The Annual Report is not to a minister and contains no reference to any of the usual public sector reporting requirements. On a related issue as a company with turnover in excess of $3 million, it seems NeHTA itself is subject to the private sector provisions of the Federal Privacy Act, not those that relate to the public sector, which given the nature of its business might come as a surprise. The website makes no mention of what privacy regime applies, but with regard to identifiers states: "New legislation introduced by the Federal Government sets out the governance, privacy safeguards and permitted use of healthcare identifiers. In addition the current state, territory and federal privacy legislation will continue to apply."

Here is the relevant transcript ( Finance and Public Administration 21 February at 112)

Senator BOYCE—My questions relate to NEHTA, the National E-Health Transition Authority. NEHTA appeared in the 2009-10 annual report appendix as one of the organisations that was covered by the Freedom of Information Act 1982. Is that correct?
Prof. McMillan—Yes. I have seen a statement to that effect.
Senator BOYCE—Subsequently, when I have sought to access information from them, either through estimates or through a freedom of information request, I have been advised that they are exempt from the Freedom of Information Act.
Prof. McMillan—Yes.
Senator BOYCE—How do you reconcile these two?
Prof. McMillan—I will ask my colleague, Dr James Popple, the Freedom of Information Commissioner, to address that as Dr Popple has been looking at it, but in summary, the act spells out agencies which are subject to it and agencies which are not, and it does not fall within the category.
Senator BOYCE—It was in the category of being the subject of freedom of information on the list that came out in an annual report.
Prof. McMillan—That is right. The statement in the annual report was erroneous.
Dr Popple—As Professor McMillan stated, the Freedom of Information Act applies to ministers and agencies. Agencies are defined as departments and prescribed authorities. Prescribed authorities are defined in paragraph 4.1 of the act, crucially to mean a body corporate or an unincorporated body established for a public purpose. There is an exception and one of those exceptions is an incorporated company or association. I understand that the National E-Health Transition Authority is a public company limited by guarantee, so Professor McMillan is correct that NEHTA is not covered by the FOI Act. I understand the report to which you refer lists a number of agencies and has a footnote down the bottom that says that this is a disclaimer as to the completeness of the list. It is our view that NEHTA is not covered by the FOI Act.
Senator BOYCE—How did they get on the list?
Dr Popple—That report was prepared by the Department of the Prime Minister and Cabinet. My understanding is that they sought advice from the relevant departments and agencies. At some stage someone decided that NEHTA was covered by the FOI Act, but in our view it is not. I should say that it has never been. This is not a consequence of any amendments that came before 1 November.
Senator BOYCE—How does the general public, who have contributed over $200 million in the last five years to NEHTA, access information about the activities of NEHTA?
Dr Popple—I do not know anything about NEHTA except what it is called. I have no idea how it deals with the public. All I can tell you is that it is not covered by the FOI Act.
Senator BOYCE—The shareholders are the federal and state health departments, or government.
Dr Popple—That could be right; I really do not know.
Senator BOYCE—That is right. Do you have any concerns about organisations such as this being structured so that they cannot be subject to FOI requests?
Dr Popple—I do not know that it is for me to say anything about the policy behind that. You say that it has been structured so that it not subject to FOI. The reason it is not subject to FOI is that it has been incorporated. There are, of course, many government and intra-government bodies which are incorporated and unless they are listed in the regulations as being subject to the act, they would not be.
Senator BOYCE—Do you have a list of the government bodies that are not subject to FOI?
Dr Popple—The department of finance maintains a list, which is thought to be the total list of all agencies within the Commonwealth, and it indicates whether or not they are incorporated or how they might have been set up.
Senator BOYCE—Should I be seeking that here or should I ask the department of finance for that list?
Dr Popple—It is a public document. They publish it once every year or so.
Prof. McMillan—We worked off the same list that you worked off when we first commenced operation and assumed that it was an accurate list. We now know that it is not a completely accurate list.
Senator BOYCE—How many others are wrong?
Prof. McMillan—We hope there are no other errors in the list. Certainly, that is one of the challenges that we face. Ultimately, these issues are determined from case to case, just because of the large number of bodies out there.
Dr Popple—Any documents of the authority that are held by the Commonwealth in its capacity, for example, as a shareholder, are subject to the FOI Act. Any document in the possession of a government agency or government minister, from wherever that document came, is a document that is subject to the FOI Act. That is a partial answer to your earlier question, but it clearly does not address the concern that you raised in full. I can add that one of the requirements of the FOI Act is that my office is to do a review of the FOI Act
within two years. Clearly, the issues of inclusion and exclusion will arise in the meantime. It is really policy responsibility of the Department of the Prime Minister and Cabinet to decide whether amendments should be sponsored to move agencies under the act.
Senator BOYCE—I have just one clarification. When you say ‘within two years’, do you mean by 2013?
Prof. McMillan—Yes, by 2013.
Senator BOYCE—Thank you.


  1. Hi Peter,

    What are the implications of needing to be under the Private Sector Act?



  2. For an entity to be an "agency" subject to the Privacy Act principles that apply to public sector bodies they must be an agency as defined. If they aren't they are subject to the principles that apply to a private sector body if they have a turnover of $3 million or more a year. The principles that apply to a public sector agency or a private sector body differ in some important respects. An agency is defined in the Privacy Act as follows. As NeHTA is an incorporated company it wopuyld appear to be a private sector body for privacy Act purposes. Agency means:

    (a) a Minister; or

    (b) a Department; or

    (c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being:

    (i) an incorporated company, society or association; or

    (ii) an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

    (d) a body established or appointed by the Governor‑General, or by a Minister, otherwise than by or under a Commonwealth enactment; or

    (e) a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

    (f) a person holding or performing the duties of an appointment, being an appointment made by the Governor‑General, or by a Minister, otherwise than under a Commonwealth enactment; or

    (g) a federal court; or

    (h) the Australian Federal Police;