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27 February 2023
Private and Confidential
Jason Romano
By email only: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Romano
Decision about your request for documents
I am writing about your request for documents
1 which we received on 30 January 2023.
As an authorised decision maker,
2 this letter sets out a summary of my decision and outlines:
3
•
a summary of your request;
•
a list of the materials used to reach the decision;
•
the reasons for the decision; and
•
information about your review rights.
Your request
As you’ll know, the Australian Health Practitioner Regulation Agency (
Ahpra) wrote to you on 2 February
2023 to provide you with information about the Freedom of Information process and to acknowledge that
the agency would consider your request for the following documents:
I would like to request list of all Australian health services (public and private) that employed IMGs
directly in 2022 not through national matching for PGY2 with limited and provisional registration. I
also would like to know how many were of those through standard RMO/HMO campaigns and how
many were out of RMO/HMO campaign?
At the time, we explained that Ahpra was
legally required to make a decision about your request within 30
days. In your case, this means that a decision must be made by close of business on
1 March 2023.
How I made my decision
In reaching my decision I referred to:
•
the terms of your request;
•
searches conducted in relation to the scope of your request;
•
the nature of information ordinarily held by Ahpra;
1 Made under under the
Freedom of Information Act 1982 (Cth).
2 Under section 23 of the
Freedom of Information Act 1982 (Cth).
3 In accordance with section 26 of the
Freedom of Information Act 1982 (Cth).
Australian Health Practitioner Regulation Agency | National Boards
GPO Box 9958 Melbourne VIC 3001 Ahpra.gov.au 1300 419 495
Ahpra and the National Boards regulate these registered health professions: Aboriginal and Torres Strait Islander health practice, Chinese
medicine, chiropractic, dental, medical, medical radiation practice, midwifery, nursing, occupational therapy, optometry, osteopathy,
paramedicine, pharmacy, physiotherapy, podiatry and psychology.
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•
internal consultation with relevant officers;
•
the
Freedom of Information Act 1982 (Cth) (
FOI Act);
•
the Health Practitioner Regulation National Law, as enforced in each state and territory (the National
Law);
•
FOI Guidelines issued by the Australian Information Commissioner.
Decision
The FOI Act regulates requests to access information contained within documents that already exist or could
easily be produced by computerised means (such as by generating a pre-programmed report).
Under section 24A(1) of the FOI Act, an agency may refuse a request for access to a document if all
reasonable steps have been taken to find the document and the agency is satisfied that the document does
not exist or cannot be located.
In response to your request, Ahpra conducted a search of its information holdings and did not identify any
existing documents that would meet the scope of your request. As all reasonable searches have been
conducted by Ahpra and no document within the scope of your request can be located, it is my decision to
refuse access under section 24A(1) of the FOI Act.
Although a discrete document within the scope of your request does not exist, or cannot otherwise be
reasonably located, I am also required to consider whether a document could be produced by Ahpra in
accordance with section 17 of the FOI Act:
17 Requests involving use of computers etc.
(1)
Where:
(a)
a request (including a request in relation to which a practical refusal reason exists) is
made in accordance with the requirements of subsection 15(2) to an agency;
(b)
it appears from the request that the desire of the applicant is for information that is not
available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided with a
computer tape or computer disk on which the information is recorded; and
(c)
the agency could produce a written document containing the information in discrete form
by:
(i)
the use of a computer or other equipment that is ordinarily available to the agency
for retrieving or collating stored information; or
(ii)
the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written document
so produced and containing that information and, for that purpose, this Act applies as if the
agency had such a document in its possession.
(2)
An agency is not required to comply with subsection (1) if compliance would substantially and
unreasonably divert the resources of the agency from its other operations.
Production of a document under section 17 is dependent on an agency being able to produce a written
document containing the requested information in discrete form by using a computer in a manner that is
‘ordinarily available’ to it to retrieve or collate stored information. In
Collection Point Pty Ltd v Commissioner
of Taxation4 (referenced in the Australian Information Commissioner’s FOI Guidelines),
5 the Full Federal
4
Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67.
5 Australian Information Commissioner,
FOI Guidelines (combined June 2020) 3.204-3.210.
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Court of Australia has held that the reference in section 17(1)(c)(i) to a ‘computer or other equipment that is
ordinarily available’ means:
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‘a functioning computer system including software, that can produce the requested document without
the aid of additional components which are not themselves ordinarily available … [T]he computer or
other equipment … must be capable of functioning independently to collate or retrieve stored
information and to produce the requested document.’
In that case, the Court found that this will be a question of fact in the individual case and may require
consideration of ‘the agency’s ordinary or usual conduct and operations’.
7
Following my enquiries into the practicality of producing a document in accordance with section 17, I
understand that our systems and dataset are such that to produce a report or other discrete document
detailing the information you seek would not be easily practicable without significant manual intervention
and data validation. Consequently, I find that the system is not capable of functioning independently to
collate or retrieve the stored information or produce the requested document. Further, production of a
document in the terms you have requested would require manual intervention in a manner which, under the
FOI Act, constitutes use of a computer in a manner that is not ordinarily available to Ahpra and is outside of
Ahpra’s ordinary or usual conduct and operations.
Accordingly, I find that section 17(1) does not apply to your request, and the FOI Act does not require the
creation of a new document to satisfy the request.
Data requests to Ahpra
Although this information cannot be created pursuant to section 17 of the FOI Act, to assist you further, I
advise that requests for data and statistics can be made to Ahpra’s Data Requests team for their
consideration.
This team can be contacted at
xxxxxxxxxxxx@xxxxx.xxx.xx. More information about making data requests
to Ahpra can be found at
https://www.ahpra.gov.au/About-AHPRA/What-We-Do/Data-access-and-
research/Data-not-publicly-available.aspx .
Charges
No charges have been imposed for processing your request.
Review rights
If you disagree with my decision, you can ask for it to be reviewed.
Review of this decision by Ahpra
You may apply to Ahpra for a review of this decision.
8 Your application must be made by whichever date is
the later between:
•
30 days of you receiving this notice, or
•
15 days of you receiving the documents to which you have been granted access.
This review would not be conducted by me. To apply, it would help your case to explain why you believe
the original decision is not correct.
An application for a review of the decision should be addressed to:
6
Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67 [43]-[44].
7
Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67 [48].
8 Under section 54 of the
Freedom of Information Act 1982 (Cth).
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Mailing address:
Mr Robert Green
Senior Legal Advisor
Ahpra
GPO Box 9958
MELBOURNE VIC 3001
Email address:
xxx@xxxxx.xxx.xx
If you choose to seek a review and disagree with that decision, you would subsequently have a right to
apply to the National Health Practitioner Privacy Commissioner (
the Commissioner) for a review of our
decision. However, if you wish, you may choose to instead apply directly for review of this decision to the
Commissioner, as I describe below.
Review by the Commissioner
You can apply to the Commissioner to review an FOI decision made by Ahpra.
9 Your application must be
made within 60 days of receiving our decision.
The Commissioner is an independent office holder who may review decisions of Ahpra under the FOI Act.
You can contact them to seek review of this decision at the details listed below. An FOI review application
form is available on the National Health Practitioner Ombudsman (
the Ombudsman) website:
https://nhpo.gov.au/
Complaints about the way we’ve managed your matter
If you want to provide feedback or make a complaint about Ahpra or a National Board then you can contact
our Complaints and Feedback team. Information about how to do this can be found on our website:
https://www.ahpra.gov.au/About-AHPRA/Complaints.aspx
If you’re unhappy with our response to your complaint, you can contact the Ombudsman. Their details are:
Mailing address:
National Health Practitioner Ombudsman
GPO Box 2630
MELBOURNE VIC 3001
Email address:
xxxxxxxxxx@xxxx.xxx.xx
Telephone enquiries: 1300 795 265
Contact
If you have any questions about anything in this letter, please contact us at
xxx@xxxxx.xxx.xx.
Yours sincerely
Matthew Reghenzani
Senior Freedom of Information Officer
National Information Release Unit
Reference Number:
FOI41325
9 Under section 54L of the
Freedom of Information Act 1982 (Cth).
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