Ground 1: Information related to the affairs of the provider
75 Mr Mullen contends that 'protected information' as defined by s 86-1 of the Aged Care Act is to be construed as follows:
' ... the personal information protected is generally that of the care recipient, and the affairs or the approved provider can be construed to mean those affairs directly relating to a care recipient. The overall intent [of Division 86] seems to be that of protecting the privacy, dignity and human rights of the care recipient.'
I believe that the intention of the phrase 'affairs of the approved provider' as conceived at the commencement of the Aged Care Act in 1997 would have been to prevent the dissemination of information that might have once been seen as demeaning to care recipients, such as the open discussion of toileting arrangements, the use of incontinence pads, bathing arrangements, feeding requirements and intimate care issues.
76 I do not accept that on its proper construction the expression 'related to the affairs' is to be read down such that it has the narrow meaning propounded by Mr Mullen. Mr Mullen limits its meaning to in effect personal information directly relating to a care recipient or information that relates to matters that he considers 'personal' matters, such as hygiene, that relate to care recipients more generally.
77 There is no reason to construe the words 'affairs of an approved provider' narrowly.
78 The text of s 86-1 itself does not suggest any such limitation. 'Personal information' is already covered by s 86-1(b)(i). Information that 'relates to the affairs of an approved provider' is therefore intended to capture something different to simply 'personal information'. Otherwise its inclusion would be otiose.
79 'Affairs' is not defined. In Walker v Secretary, Department of Health and Ageing, Griffiths J considered the meaning of the phrase 'with respect to the affairs of another person' in the context of a secrecy provision in the Health Insurance Act 1973 (Cth). His Honour rejected an argument that 'affairs of another person' was to be limited to personal affairs and held that it operates to include professional or business affairs, having regard to the activities carried out under the Health Insurance Act. Relevantly, dictionary definitions of 'affairs' did not suggest any relevant limitation. To the contrary, such definitions were broad, referring to ordinary pursuits of life, business dealings and public matters, and 'what one has to do'.
80 The nature of the 'affairs' that an approved provider may have is to be viewed in the context of the objects and scope of the Aged Care Act. As noted above, the Act is concerned not only with care provided to care recipients but also with an approved provider's ability to obtain funding from the Commonwealth, its reporting obligations in that regard and compliance more generally with its statutory obligations. There is to my mind no question that the 'affairs' to which the phrase refers contemplates matters such as investigation and monitoring of the approved provider in the context of its obligations and its approval status under the Act. Such matters are part of its business and relevant to its status and obligations under the Act.
81 Taking into account the reporting obligations as to both funding and compliance under the Act, it is likely that the type of information that government authorities might seek or receive about an approved provider would be broader than simply personal information or information about the narrow range of 'personal' matters to which Mr Mullen refers. It is therefore not surprising that the secrecy provisions would extend to information relating to the approved provider's business.
82 This interpretation is consistent with the Explanatory Memorandum to the Aged Care Bill 1997 (Cth), which states (at 157):
Clause 86-1 Meaning of protected information
The provisions in this Division relate only to protected information. This clause sets out a definition of 'protected information' as information that has been acquired under or for the purposes of the Act, and either;
is personal information; or
relates to the affairs of an approved provider, or of an applicant under Part 2.1 or Chapter 5. The purpose of this part of the provision is to ensure that information such as commercial-in-confidence information is protected under this Part.
Personal information is defined in the Dictionary as 'information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion'.
Any information that is not protected information can be used as necessary. It is not protected in any way under this Act.
83 Whilst I acknowledge the guidelines for s 38 of the FOI Act refer to the 'primary' purpose of secrecy provisions being the protection of client information, such guidelines do not operate to prohibit a decision maker having regard to the construction of the relevant secrecy provision and other purposes that are clearly relevant to the particular legislation and the terms of the section in question. Quite clearly, s 86-1 does not have as its only purpose the protection of confidential care-recipient information. Its terms expressly include reference to information relating to an approved provider, or an applicant for approval or an applicant for a grant.
84 Mr Mullen argues against a broader interpretation because he perceives it as a means by which information about the quality of care that should be disclosed can be deliberately withheld. But it is important to note that despite information being protected (and so despite it being information that relates to the affairs of an approved provider), there are circumstances where the Aged Care Act provides for its release. Section 86-2(2) of the Aged Care Act expressly quarantines from liability under s 86-2 a person or entity who discloses protected information where disclosure is otherwise authorised under the Aged Care Act or other legislation. As Branson J explained in Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170:
[53] Subs 86-2(2) recognises that some disclosures of the information identified in subs 86-2(1) may be authorised and ss 86-3, 86-4, 86-8 and 86-9 themselves authorise particular individuals or bodies in certain circumstances to disclose information otherwise protected from disclosure by Division 86. The apparent purpose of specifying in Schedule 3 of the FOI Act subs 86-2(1) and ss 86-5, 86-6 and 86-7 of the Aged Care Act is to ensure that information protected under Division 86 of the Aged Care Act is not disclosed other than as authorised by that Division.
85 Section 86-3 permits disclosure of protected information by the Secretary of the Department in his or her discretion in particular circumstances. For example, personal information might be disclosed to a person who in the opinion of the Secretary is expressly or impliedly authorised by the person to who the information relates to obtain it (s 86-3(1)(b)). The Secretary may disclose information if he or she believes on reasonable grounds that disclosure is necessary to prevent or lessen a serious risk to the safety of a care recipient (s 86-3(1)(e)).
86 Section 86-9 permits disclosure by the Secretary in his or her discretion of information about an 'aged care service' (defined as an undertaking that provides aged care) and is not limited to disclosure relating to an approved provider. It permits public disclosure in the discretion of the Secretary of information that otherwise falls within the definition of protected information in s 86-1(b)(ii), (iii) or (iv), and so including disclosure of information that is protected because it 'relates to the affairs of an approved provider'. This follows from the fact that by s 86-9(2), the Secretary is not permitted under s 86-9(1) to disclose 'personal information'. There is no similar express prohibition on disclosure by the Secretary of other categories of protected information. Section 86-9(2) would be unnecessary if s 86-9(1) were to be construed as a list of only non-protected information.
87 There is no doubt that s 86-9 lists many categories of information, some of which might include information that might be described as 'relating to the affairs of' an approved provider. To that extent, although such information remains protected information, it may be that the Secretary in the proper exercise of his or her discretion might decide to publicly disclose it and will not fall foul of s 86-2 because of such disclosure. However, it does not follow that it will automatically be disclosed. Nor does it follow that there will not exist particular information relating to the affairs of an approved provider that falls outside the scope of the particular items listed in s 86-9 but is also protected information under s 86-1. Nothing in the manner in which the provisions operate together suggests that 'affairs' must be construed narrowly.
88 It is useful to note that the Explanatory Memorandum to the Aged Care Act provides that:
Clause 86-9 Information about an aged care service
This clause allows the Secretary to release general information about a service or support service provided that personal information is not included. The intention of this clause is to ensure that residents and prospective residents have access to information about service to enable them to make informed decisions about their care. The type of information that can be released under this clause includes:
the name, address, and telephone number of a service,
the number of places included in the service,
the services provided by the service,
the facilities and activities available to care recipients receiving care through the service, and
information about the approved provider's performance in relation to responsibilities and standards under the Act.
Additionally, this clause allows the Secretary to give information about the outcome of a complaint relating to an aged care service to the complainant.
89 I note for completeness that the reference to an outcome of a complaint in the last paragraph of the extract from the Explanatory Memorandum is no longer reflected in the legislation, a provision that was formally included as s 86-9(3) having since been repealed.
90 The reference to 'general information' in the Explanatory Memorandum is consistent with the manner in which I have determined the provisions may be sensibly read together: that is, a construction of s 86-1, s 86-2 and s 86-9 that facilitates the protection of a broad range of information but with the power in the Secretary to exercise his or her discretion to make public certain information that is otherwise protected, other than personal information.
91 As noted, Mr Mullen contends that 'affairs' in s 86-1(b)(ii) is to be construed narrowly. He contends that consistent with that submission, matters relating to the business of an approved provider are set out in s 86-9 and, as they can be disclosed, they are not exempt.
92 I reject Mr Mullen's contention, taking into account a number of matters.
93 First, once one accepts that personal information as defined by s 86-1(b)(i) is protected, on Mr Mullen's argument the content of 'affairs' is then limited by confined parameters, parameters that are undefined save that the information should have some subjectively-construed personal element. In light of the general usage of the word and its commonly understood meaning, there is no sound basis to accept Mr Mullen's submission that 'affairs' is limited to 'personal' matters that are generally relevant to the day to day care of the aged (and others) such as hygiene.
94 Nor is there anything in the connecting expression 'relates to' that compels a narrow meaning. Some guidance as to the meaning of such a connecting expression is to be found in DC Pearce and RS Geddes, Statutory Interpretation in Australia, 8th ed at [12.6]. It is accepted that the words indicate that a connection is required and it gathers its meaning from the context in which it appears. There is nothing in s 86-1 that suggests that the relevant information must relate in any particular way to the affairs of an approved provider or must relate to any particular aspect of those affairs. The words should bear a general and broad meaning, having regard to the meaning of 'affairs', as already addressed.
95 Second, for the reasons already given, there is no inconsistency with information being protected under s 86-1 but otherwise liable to disclosure in the Secretary's discretion under s 86-9. The provisions can be read together. Section 86-9 clearly contemplates that protected information falls within its scope.
96 Third, if 'affairs' in s 86-1 were to be construed as narrowly as Mr Mullen contends, then many of the categories of information listed under s 86-9 would not fall within the ambit of s 86-1, would therefore not meet the description of protected information, and there would be no need for the disclosure regime provided for in s 86-9, or at least no need for many of its subparagraphs. As was noted in the Explanatory Memorandum to the Aged Care Bill, non-protected information is not protected under the Aged Care Act. A construction that gives meaning to every word of a provision is to be preferred: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).
97 Fourth, the construction for which Mr Mullen contends may not accommodate the very example of the type of information anticipated by the Explanatory Memorandum to be protected by s 86-1(b)(ii) (commercial in confidence documents).
98 Fifth, it is not the case that because the Secretary may exercise discretion to disclose the matters listed in s 86-9 that such matters are not exempt. To the extent that those matters are protected information, their disclosure is only permitted when the Secretary elects to exercise his or her discretion to make them publicly available. The Secretary has not exercised such discretion in this case in any event.
99 There are other contextual matters that tell against Mr Mullen's position.
100 The secrecy regime does not operate without incursion. In addition to the potential for disclosure of non-personal information taking into account (relevantly) s 86-2(e), s 86-3 and s 86-9, it is also relevant to note that the scope of non-personal information that might be protected is confined by the fact that it must have been acquired under or for the purpose of the Aged Care Act (s 86-1(a)). It is open to a person to seek access to information without seeking to enforce any right of access under the FOI Act.
101 Further, an overarching theme of Mr Mullen's submissions is that every person has a right to access information held by a government authority, and such freedom under the FOI Act directs a generous interpretation of legislative provisions such that terms that limit access should be construed narrowly. Any such presumption in the context of freedom of information legislation has been rejected by the courts: Walker v Secretary, Department of Health and Ageing at [59].
102 In any event, it is important to remember that the term 'relates to the affairs' appears in the context of the Aged Care Act, not the FOI Act. The Aged Care Act does not have any such indication evident within it, and Mr Mullen did not suggest that it did.
103 In conclusion, having regard to the text of Part 6.2 of the Aged Care Act, and in particular s 86-1, s 86-2 and s 86-9, and having regard to the context and purpose of the Act, I dismiss Mr Mullen's first appeal ground in both appeals (as described at [68] above). I do not consider the Tribunal misconstrued s 86-1 and s 86-2 of the Aged Care Act or otherwise erred in finding that the information sought in the FOI requests would be exempt. I consider that on their proper construction, a broad interpretation of the words 'relates to the affairs of an approved provider' is open and 'affairs' is not limited as contended by Mr Mullen.