20 March 2015
Samantha Pasfield
Email: xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Pasfield
Freedom of Information (FOI) Request No. 14/15-125
1. I refer to your request of 20 February 2015 under the
Freedom of Information Act
1982 (FOI Act), in which you sought access to:
1) (A) The number of nursing homes closed in NSW in the 2014 calendar year
and (B) the total cost of closing them.
2) Total government funding provided to Uniting Care Ageing across Australia in
the 2014 calendar year.
3) The cost per person per year in full-time nursing care.
2. With regard to Point 2, on 26 February 2015 you clarified the scope of your
request to:
“Total Australian Government aged care funding provided to Uniting Care Ageing
across Australia in the 2014 calendar year”
3. On 3 March 2015 I wrote asking for two points of clarification for Point 2 of your
request.
4. Uniting Care Ageing is not an Australia-wide entity, so I requested clarification
about which organisations
“across Australia” you were requesting funding
information.
5. On 3 March 2015 I also requested clarification about “
total funding”, asking
whether particular funding types should be included or not.
6. On 4 March 2015 you clarified the scope of Point 2 of your request to:
“All types of Australian Government aged care funding, including one off funding
provided to UnitingCare Ageing across NSW/ACT in the 2014 calendar year”.
7. On 4 March 2015 I requested you to further clarify the scope of Point 2 of your
request to:
PO Box 7576 Canberra Business Centre ACT 2610
Email Facsimile Telephone 1300 653 227
National Relay Service: TTY: 133 677, Speak and listen: 1300 555 727, Internet relay: www.relayservice.com.au
www.dss.gov.au
“Australian Government aged care funding for the Aged Care Provider with the
trading name ‘UnitingCare Ageing NSW ACT’ for the calendar year 2014”.
8. On 5 March 2015 you confirmed that this reflected your understanding of Point 2
of your request.
DECISION AND REASONS FOR DECISION
9. The purpose of this letter is to notify you of our decision regarding access to
documents that you requested under the FOI Act.
10. I am an officer authorised under subsection 23(1) of the FOI Act to make
decisions in relation to FOI requests.
Material taken into account
11. I have taken the following material into account in making my decision:
a. searches undertaken for any documents within the scope of your request;
b. relevant provisions of the FOI Act (in particular sections 38, 24A);
c. relevant provisions of the
Aged Care Act 1997 (the Aged Care Act) (in
particular sections 86-1 and 86-2 of the Aged Care Act); and
d. the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines).
12. I will now address each of the parts of your request in turn.
POINT 1, PART A
13. You requested:
“all documents and reports relating to: The number of nursing homes closed in
NSW in the 2014 calendar year”
14. I have identified four documents in scope for Point 1, part A.
Documents to which secrecy provisions of enactments apply
15. I have decided to refuse access to these documents as the documents are
exempt from release under subsection 38(1) of the FOI Act.
16. Subsection 38(1) of the FOI Act states that a document is an exempt document if
disclosure of the document, or information contained in the document, is
prohibited under a provision of an enactment. The provision must be specified
under Schedule 3 of the FOI Act, or a provision of an enactment must expressly
apply section 38 of the FOI Act to the document.
17. Schedule 3 of the FOI Act specifies, relevantly, subsection 86-2(1) of the
Aged
Care Act 1997 (the Aged Care Act) as a provision to which subsection 38(1) of
the FOI Act applies.
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18. Subsection 86-2(1) of the Aged Care Act provides that:
(1)
A person is guilty of an offence if:
(a) the person makes a record of, discloses or otherwise uses information;
and
(b)
the information is * protected information; and
(c) the information was acquired by the person in the course of performing
duties or exercising powers or functions under this Act or the Aged Care
(Transitional Provisions) Act 1997 .
Penalty: Imprisonment for 2 years.
19. “Protected information” under section 86-1 of the Aged Care Act covers
information acquired under or for the purposes of the Aged Care Act and
includes information that “relates to the affairs of an approved provider”.
20. The documents provided in response to Point 1 of your request contain
“protected information” under the Aged Care Act in that it would relate to the
affairs of approved providers of aged care.
21. Consequently, the documents are exempt from disclosure under subsection
38(1) of the FOI Act.
Access to the information outside of the FOI processes
22. I have decided to release the information to you outside of FOI, that four (4)
nursing homes were closed in NSW in the calendar year 2014, as release of this
information does not involve the disclosure of protected information about an
approved aged care provider.
POINT 1, PART B
23. You requested:
“The number of nursing homes closed in NSW in the 2014 calendar year
and the total cost of closing them”
24. The Department has undertaken all reasonable searches and I am satisfied no
documents were identified to satisfy your request.
25. All closures are ultimately business decisions of the approved provider, and it is
the provider that covers any associated costs (e.g. engaging assistance to cover
the operational aspects of moving any care recipients to other accommodation).
26. As it is a matter for the provider, the Department does not have any documents
relating to these costs.
27. Accordingly, I have decided to refuse your request under section 24A of FOI Act.
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Section 24A of the FOI Act
28. Subsection 24A(1) of the FOI Act provides a request for documents may be
refused if all reasonable steps have been taken to find a document and the
Department is satisfied the document is either in the Department’s possession
but cannot be found or the Department is satisfied the document does not exist.
POINT 2
29. You requested:
“Australian Government aged care funding for the Aged Care Provider with the
trading name ‘UnitingCare Ageing NSW ACT’ for the calendar year 2014”.
30. I have consulted with the relevant line area in the Department and understand
that the Commonwealth Home and Community Care (HACC) funding received by
the provider with the trading name ‘UnitingCare Ageing NSW ACT’ for the 2014
calendar year was $11,127,106.22.
POINT 3
31. You requested:
“The cost per person per year in full-time nursing care”.
32. On 26 February 2015, in response to our further correspondence informing you
that the information requested is publicly available for the 2013-14 financial year,
you withdrew Point 3 of your request.
REVIEW RIGHTS
Internal review
33. Under section 54 of the FOI Act, you may apply in writing to the Department for
an internal review of my decision. The internal review application must be made
within 30 days of the date that you receive this letter.
34. If you choose to apply for internal review, please attach reasons why you believe
review of the decision is necessary. The internal review will be carried out by an
officer authorised to do so within 30 days.
Information Commissioner review
35. Under section 54L of the FOI Act, you may apply to the Australian Information
Commissioner to review my decision. An application for review by the
Information Commissioner must be made in writing within 60 days of the date
you receive this letter, and be lodged in one of the following ways:
Online: https://forms.australia.gov.au/forms/oaic/foi-review/
Email: xxxxxxxxx@xxxx.xxx.xx
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Post: GPO Box 2999, Canberra ACT 2601
In person: Level 3, 175 Pitt Street, Sydney NSW
36. More information about Information Commissioner review is available on the
Office of Australian Information Commissioner website at:
www.oaic.gov.au/foi-portal/review_complaints.html#foi_merit_reviews.
Please don’t hesitate to contact an FOI officer a
t xxx@xxx.xxx.xx if you have any
questions.
Yours sincerely,
FOI Officer
Information Law Team
Legal Services Group
Department of Social Services
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