Report 10

Opinions on Ministerial Notifications

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Ministerial decision not to provide a report on 2015-16 induced abortions

Opinion

The decision by the Minister for Health, the Hon Roger Cook MLA, not to provide Parliament with a copy of the report Notification of Induced Abortions, 2015-16, Gestation 20 weeks or more was not reasonable and therefore not appropriate as most of the information was not confidential and could have been provided.

Background

In Parliament on 11 May 2017, the Hon Nick Goiran MLC asked the Parliamentary Secretary representing the Minister for Health for a range of information on abortions. Part (9) of Legislative Council Question on Notice 5 asked for the following information:

(9) I refer to supplementary information No. A5, provided by the Department of Health to the Standing Committee on Estimates and Financial Operations, arising from the 2014-15 Annual Report Hearings, and I ask:

(a)  when was the second annual report submitted by the Executive Director, Public Health in 2016; and

(b)  when will the Minister table this report?

On 15 June 2017, the Minister provided the information requested in (a) and declined to provide the information requested in (b), replying:

(9)(a) The confidential report ‘Notification of induced abortions, 2014/15, Gestation 20 weeks or more’ was provided by the Executive Director Public Health to the Minister for Health in August 2016, and a revised version was provided in November 2016.

(b) The report is confidential, contains medical information on ‘Reason for Abortion’, and will therefore not be tabled.

On 27 September 2017, the Minister notified the Auditor General of his decision not to provide the requested information in accordance with section 82 of the FM Act.

Key findings

The decision by the Minister not to provide the requested report Notification of Induced Abortions, 2015-16, Gestation 20 weeks or more was not reasonable and therefore not appropriate.

The Minister properly sought advice from the Department of Health (Department) before responding to the request. The Department recommended the Minister not provide the report as it was confidential and contained medical information. The Minister followed the Department’s advice.

We assessed information in the report using key criteria for confidentiality. Specifically:

Criterion 1 – Is the information sufficiently secret? Is it significant?

This criterion was met. At the time the Minister declined to provide the information to Parliament, the report was not generally known or ascertainable.

The report contained information on abortions of 20 weeks or more in 2015-16. The report was not publicly available at the time the Minister declined to provide it to Parliament.

Criterion 2 – Is it in the public interest for the information to remain confidential?

This criterion was not met. The majority of the information in the report was quantitative. For example, the number of procedures, year of procedure, and gestation period. We assessed the potential benefits and detriments of disclosure and found no compelling reason for most of this information to remain confidential.

However, there are well-founded reasons for the small volume of clinical patient information in the report to remain confidential. The Minister advised Parliament that this information could be used to identify individual patients, such as those diagnosed with rare medical conditions. Keeping this clinical information confidential is in line with the National Health Information Standards and Statistics Committee’s Guidelines for the Disclosure of Secondary Use Health Information for Statistical Reporting, Research and Analysis 2015.

In advising the Minister, the Department did not consider if a redacted copy of the report could have been provided to Parliament. The Department relied on its established position that the report was confidential. Determining whether information is confidential is not straightforward. It is good practice for agencies to carefully assess all information requested on a case by case basis and document their assessment.

On 21 September 2017, after the Minister declined to provide the information to Parliament, but before notifying the Auditor General about his decision, the Department provided a redacted copy of the report to Hon Nick Goiran under the Freedom of Information Act 1992. Further information was released to Hon Nick Goiran on 28 February 2018. A small part of the report remains redacted.

Response from the Department of Health

The Department acknowledges the findings of the Auditor General.

The Department holds a significant volume of very sensitive information and takes very seriously the responsibilities and duties that come with being the repository of that sensitive information.

In advising the Minister, the Department was conscious of the need to ensure that sensitive information was properly managed and not disclosed without appropriate justification. This was particularly pertinent in this case because of the nature of the clinical information contained in this document, the circumstances of how it was obtained and the potential for its disclosure to cause further distress to the families to whom it relates. The information contained in the document is of a confidential nature and is not generally known to the public. Although the Auditor General has noted that the Department relied on its “established position” that the document was confidential, it must also be noted that the Department’s “established position” is based upon a clear and thorough understanding of the nature of the information contained in this particular type of report, the circumstances in which that information is collected and the protocols under which it is managed.

The Department considered that the sensitivity of the information, the potential inconsistency of its disclosure with applicable national health standards and the possible impact of its disclosure warranted the Minister not disclosing the Report. It gave advice, in good faith, to that effect to the Minister and the Minister, in good faith, followed that advice. The Department acknowledges and accepts the Auditor General’s comments with respect to the possibility of providing a redacted copy of the document being sought such that only the quantitative information remained. The Department will ensure that possibility is fully considered in future matters.

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