Section 86-3 provides that the Secretary of the Department may disclose protected information in certain circumstances. However the Secretary's Delegate had refused to exercise the discretion to release the documents under the AC Act. No reasons were required or given.
Section 11A(4) of the FOI Act provides that an agency or minister is not required by the FOI Act to give a person access to a document if it is an exempt document. Section 55L of the FOI Act prevents the disclosure of exempt information by the Information Commissioner in the course of an IC review. As the Commissioner summarised the situation , unless other provisions apply:
- an agency or minister is not required by the FOI Act to give a person access to a document that contains protected information for the purposes of Part 6.2 of the AC Act;
- the Information Commissioner does not have the power to grant access to that document in an IC review;
(1A) A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.
16. Although ministers and agencies are not required to disclose exempt documents in these circumstances, they still have the power to do so. The Information Commissioner and the Tribunal do not have that power.
- But, although the exercise of the power in s 86-3 of the AC Act would clearly be relevant to the current IC review, there are two reasons why I cannot exercise that power: the decision of Branson J in Illawarra Retirement Trust, and the operation of s 55L.
- In Illawarra Retirement Trust v Secretary, Department of Health and Ageing  FCA 170; (2005) 143 FCR 461, Branson J considered the interaction of s 86-3 of the AC Act with the FOI Act. Her Honour concluded that:
When the Secretary discloses protected information in circumstances authorised by s 86-3 of the Aged Care Act, the disclosure is made under the Aged Care Act, not under the FOI Act. Section 86-3 has no relevance, in my view, to the operation of s 38(1A) of the FOI Act as it does not affect a person’s right to access to a document under the FOI Act. It is only the Secretary, acting under the Aged Care Act, who s 86-3 exempts from the prohibition contained in s 86-2. No other person may rely on the exception contained in s 86-3.
- I am bound by her Honour’s decision, because it relates to the same provisions of the FOI Act and the AC Act as are relevant to the current IC review. But, with respect, I do not agree that s 86-3 of the AC Act has no relevance to the operation of the FOI Act, which would seem to be her Honour’s reason for concluding that only the Secretary can exercise the power in s 86-3. It is true that a decision made under s 86-3 in relation to the protected information contained in some documents does not change the fact that those documents are exempt for the purposes of the FOI Act. But, a minister or an agency can give access to an exempt document, in response to an FOI application, so long as that disclosure is otherwise permitted (s 3A). Only the Information Commissioner and the Tribunal are prevented from deciding to disclose documents in these circumstances (by s 55L and s 58(2)).
- So, for example, if a decision is made under s 86-3(b) of the AC Act that an FOI applicant is expressly or impliedly authorised by the person to whom protected information relates to obtain it, then the prohibition in s 86-2 would not apply: disclosure of that information to that FOI applicant would not be prohibited by the AC Act. This would mean that, although a document containing that information would still be an exempt document under the FOI Act, a minister or an agency could decide that the document be disclosed to that FOI applicant.
- Applying the usual principles, the powers of the Tribunal or the Information Commissioner on review of a decision under the FOI Act would normally include those powers and discretions of the original decision maker that are relevant to the review. The exercise of the power under s 86-3 of the AC Act is clearly relevant to IC reviews like the current one. But Branson J’s view in Illawarra Retirement Trust is clear from the passage I have quoted at  above: it is the Secretary alone who s 86-3 of the AC Act exempts from the prohibition contained in s 86-2, and it is the Secretary alone who can exercise a discretion under s 86-3.
- In any event, even if I were able to exercise the discretion under s 86-3 of the AC Act, s 55L of the FOI Act prevents me from deciding that the documents that the applicant seeks should be disclosed to him.
Schedule 3 escaped attention in the FOI reforms of 2009-2010 and is overdue for review. Some issues about the exemptions conferred in this way are discussed in Chapter 16 of the Australian Law Reform Commission Report 112 Secrecy Laws and Open Government in Australia. The schedule lists more than 65 secrecy provisions from over 28 Acts and one sub-regulation. In addition, the ALRC identified four provisions that expressly apply s 38 but which are not listed in the schedule. There has been no Government response to the report completed in December 2009.
In Psychopoulos v Northern SydneyCentral Coast Area Health Service  NSWADT 151 Deputy President Higgins reviewed a decision to refuse the applicant access to the complete clinical notes of her son, a former patient in a facility attached to a hospital operated by agency.The applicant's son had been a patient there since 2001 and he had been an inpatient at the facility attached to the hospital since early 2007. The diagnosis of the applicant's son was treatment resistant schizophrenia and polydipsia. He died on 20 August 2009 while an inpatient at the facility. Subsequent to his death, the applicant made her request for access to her son's clinical notes for the period 18 May 2009 to 20 August 2009.
The respondent initially refused the applicant access to the clinical notes on the grounds that they were an exempt document as they contained 'matter, the disclosure of which would reasonably be expected to endanger the life of physical safety of a person' (clause 4(1)(c) of Schedule 1 of the FOI Act). On internal review the agency decided to provide the applicant with a newly created document, a verbatim record of her son's handwritten clinical notes, with deletions of the names of staff members contained in the handwritten notes. The only exempt matter in the clinical notes was said to be the names of staff members. The respondent had not provided the applicant with a copy of her son's handwritten clinical notes with the names of staff members being deleted as it had formed the view that the applicant would be able to identify, from the handwriting, which staff member had made each entry. The reason why she would be able to do this was because she had previously been provided with complete copies of earlier entries in her son's handwritten clinical notes.
Deputy President Higgins noted that the FOI Act makes no provision for access to be given in this form and that the issue for decision was whether the handwritten documents were exempt documents under paragraph 4(1)(c) of Schedule 1 of the FOI Act, the exempt matter being the names of staff members.
Evidence was presented about the applicant's concerns and criticisms of the treatment given, and Deputy President Higgins accepted that a threat against a staff member had been made in 2008. However she concluded
Although the respondent has provided material, including that provided on a confidential basis, from which it might be inferred that there were concerns about how the applicant might behave towards staff members, in my view that material does not go so far to make a finding that disclosure of the handwritten clinical notes of the applicant's son could expect to endanger the life or physical safety of staff members. Even if I am wrong, in my view the expectation, if assessed objectively from the material, is not a reasonable."(sic) .
Deputy President Higgins granted the applicant access to a copy of her son's handwritten clinical notes subject to deletion of matter concerning the personal affairs of a person other than the applicant or her son, accepted by both parties as exempt under the personal affairs exemption (clause 6 of Schedule 1) of the FOI Act.
Some differences to the law when dealing with a similar matter under the GIPA act, in force in NSW since 1 July 2010, include:
Create a new record
Section 75 provides that an agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information, although it cannot be required to do so.
Weight to be given to the identity of the applicant:
Section 55 provides:
(a) the applicant’s identity and relationship with any other person,
(b) the applicant’s motives for making the access application,
(c) any other factors particular to the applicant
may be taken into account in deciding that the public interest favours disclosure or non disclosure of requested information to the applicant.
Lower threshold replaces harm to life and safety
The Table to Section 14 provides (3(f)) that a public interest consideration against disclosure, to be weighed against competing factors that might favour disclosure is if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.