1.2.6 Exemptions from access to information

WIRC s9(4)(a)

Workers reasonably expect to be provided access to their claim documentation under the WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013. However, the WIRC Act sets out a number of exemptions which, if applicable, may result in access to specific documents being denied.

It is also important to note that:

a document or information can fall within more than one exemption
documents can be partially released. If only parts of a document fall within an exemption, the exempt part/s can be masked or deleted so that the remainder of the document can be released (if the document would still be meaningful)
access is encouraged wherever possible.

The relevant exemptions under the WIRC Act follow.

1.2.6.1. Internal working documents

This section is concerned with internal information generated within an Agent or by WorkSafe, rather than information obtained from outside the Agent or WorkSafe. Documents attracting this exemption are documents prepared by an employee (including a contracted service provider engaged by an Agent or WorkSafe) that relate to the deliberative processes The expression ‘deliberative processes’ has a wide meaning. It includes any of the processes of deliberation or consideration involved in the functions of an Agent or WorkSafe. of the agency or government and the release of those documents would be contrary to the public interest.

Definition of internal working documents

The exemption is intended to encourage frank expression and recording of opinions and options without fear of external disclosure, by protecting those documents which record an internal decision-making process.

It does not protect documents that are routinely created in the course of managing a claim or which contain purely factual material.

Examples of documents or information which might attract this exemption include:

internal Agent or WorkSafe briefings or memoranda
negotiation strategy or future planned activities (eg to conduct surveillance)
drafts of documents such as draft correspondence and draft reports and
documents that reveal opinion, deliberation or intentions of an Agent about negotiations with the worker that would expose the Agent unreasonably to disadvantage.

Exemptions

A document is exempt under this section if the following three conditions are all satisfied:

Release of the document would disclose

matter in the nature of opinion, advice or recommendations prepared by an officer or
deliberation that has taken place between officers of the Agent or WorkSafe.

The opinion, advice or recommendation was prepared or deliberation took place during the deliberative processes involved in the functions of the Agent or WorkSafe.
Disclosure of the information or document would be contrary to the public interest.

Note: Not all information generated by an officer of the Agent or WorkSafe is covered by this exemption. The information must be in the nature of ‘opinion, advice or recommendation’ in the nature of a ‘personal view’ or ‘an opinion recommended or offered’ or about a consultation or deliberation between officers. The exemption does not apply to documents or file notes containing purely factual material (eg recording of an event or a conversation) or other documents routinely created in the course of managing a claim.

To determine whether disclosure would be contrary to the public interest, consider the relevant circumstances and balance the factors for and against release.

Routine documents such as surveillance films and/or reports would not generally attract this exemption because they record facts/events observed/recorded about the worker during the surveillance.

Consideration must, however, be given to other exemptions, including the law enforcement documents, legal professional privilege and personal affairs exemptions. For example, a surveillance film/report about an investigation of possible unlawful activity (eg fraud) about a claim would, if released, be reasonably likely to prejudice the effectiveness of the investigation. Also, surveillance may contain personal (identifiable) information about other persons.

Note: Even if information or a document falls within the first part of this exemption (points 1 and 2 above) it does not mean it is exempt. Agents are required to consider whether disclosure would be contrary to the public interest. The decision in each case will depend on the content of the information

1.2.6.2 Public interest test

The public interest test balances the right of a worker to gain access and the public’s interest in ensuring that the integrity of the decision making process is protected. This is done by encouraging frank and candid discussions and the exploration of possible options without a risk The probability of the worker not returning to work is known as the risk or risk factor. For example: if a worker is likely to return to work, the claim is categorised as low risk. of undermining the scheme’s integrity.

Application of the public interest test

The 'internal working document', 'law enforcement' and 'information provided in confidence' exemptions require a consideration of the public interest, either:

in the sense that release of certain documents would be contrary to the public interest (internal working documents and information provided in confidence) or
it would be in the public interest to release otherwise exempt documents (law enforcement).

Factors to consider

1.2.6.3 Law enforcement documents

A worker, employer, service provider or an employee may be investigated for possible unlawful activity in relation to a claim for compensation.

Documents created for such an investigation are not to be released if their disclosure would be reasonably likely to prejudice the effectiveness of the investigation or a trial.

Types of information covered

The exemption covers documents that if released, would:

prejudice the investigation of a breach of the law
prejudice the enforcement or proper administration of the law in a particular instance
prejudice the fair trial of a person
disclose the identity of a confidential source of information about the enforcement of the law
disclose confidential methods for preventing, detecting or investigating breaches of the law
endanger the lives or physical safety of persons engaged in law enforcement or persons who have provided confidential information.

Types of information not covered

The exemption does not cover:

a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law
a document revealing the use of illegal methods or procedures for preventing, detecting, investigating or dealing with matters arising out of, breaches or evasions of the law
document containing any general outline of the structure of any programme adopted by an agency for investigating breaches of or enforcing or administering, the law
a report on the degree of success achieved in any programme adopted by an agency for investigating breaches of or enforcing or administering, the law
a report prepared in the course of routine law enforcement inspections or investigations by an agency which has the function of enforcing and regulating compliance with a particular law, other than the criminal law
a report on a law enforcement investigation, where the substance of the report has been disclosed to the person who or the body which, was the subject of the investigation —

if it is in the public interest that access to the document should be granted.

1.2.6.4 Legal professional privilege

Legal professional privilege or client legal privilege provides protection and confidentiality to certain communications made in connection with giving or obtaining legal advice.

Legal professional privilege is a common law right based on important public interest considerations and public interest factors of a high order are required to override the doctrine.

It covers documents that contain confidential communications between WorkSafe/Agent and:

its lawyers where the documents were created for the purpose of obtaining or providing legal advice or in contemplation of litigation
a third party where the documents refer to pending or contemplated litigation and
a third party where the documents were created for the purpose of providing information to the lawyers of WorkSafe/Agent for the purpose of obtaining legal advice on pending or contemplated litigation.

The litigation must be reasonably contemplated and not just a mere possibility, though this does not mean it must be certain. This is a question of fact based on the relevant circumstances.

Factors to consider

Some types of reports may attract legal professional privilege if the dominant purpose relates to anticipated litigation or the giving or obtaining of legal advice. These may include surveillance, circumstance reports and some medical and other reports and statements.

Alternatively, where the dominant purpose of commissioning the report was to help assess liability for a claim, legal professional privilege will not apply.

Other documents, such as medical reports obtained by legal panel firms might attract legal professional privilege only until they are exchanged between the parties or put into evidence in open court. When a document is exchanged in this way, the privilege is 'waived' and therefore no longer applies to the document.

Determine dominant purpose

To determine the dominant purpose of a document, consider the following:

'dominant' means ruling, prevailing or most influential purpose
where two purposes are of equal weight, neither is dominant
if the document has been created irrespective of any purpose of obtaining legal advice, the purpose of obtaining the legal advice is not dominant
the purpose is usually that of the author/creator of the document but this is not always the case.

Decision maker

If the ATI Officer Access to Information Officer is in doubt about whether information is exempt on the grounds of legal professional privilege, they should consult with legally qualified Agent staff.

Note: Disclosure of legal advice could result in a waiver or loss of legal professional privilege.

Documents that may be subject to legal professional privilege

At times legal advice is provided as a memorandum of advice clearly marked as privileged and confidential. Other times, legal advice is contained within documents, such as correspondence, ACCtion, file notes or other documents revealing the substance of legal advice about a claim, the decision-making process, negotiations or draft documents in preparation for conciliation or litigation.

Where legal advice is a separate and distinct part of a document, including a file note, editing the document by deleting/exempting the legal advice may be possible.

1.2.6.5 Personal affairs

Unreasonable disclosure of personal affairs

A document is exempt if its release would involve the unreasonable disclosure of information about the personal affairs of any person (including a deceased person).

Two conditions must be satisfied for the exemption to apply:

information relates to the personal affairs of a person and
disclosure must be unreasonable.

Information relating to the personal affairs of any person

The phrase ‘information relating to the personal affairs of any person’ has been interpreted widely to mean matters of private concern to an individual.

Included is information:

that identifies any person or discloses their address or location and
from which any person's identity, address or location can reasonably be determined.

Examples of information relating to the personal affairs of any person may include but are not limited to:

a name, date of birth or a signature
drivers licence or passport number
telephone number and email address
employment position held
voice recordings by whatever medium
photographs or videos or any other medium where a person may be seen
finger, hand or voice prints stored for security reasons
work or home address
Medicare or health care card number
tax file number

Written statements prepared during an investigation into a person’s conduct (including the handwritten notes of an investigating officer) may also constitute information relating to the personal affairs of any person. That is because the documents relate to their personal experiences with the worker and their various reactions to those experiences, their versions of events and their reactions to those events. As such, identity, address or location details may be able to be determined.

Reasonableness of disclosure

The test of unreasonableness involves balancing two competing public interests. The balance between the public interest in protecting an individual’s right to privacy and the public interest in disclosing information.

To determine the reasonableness of disclosing information about the personal affairs of an individual, consider the circumstances of the particular case or request. A decision maker is specifically required to take into account whether or not disclosure is reasonably likely to endanger the life or physical safety of a person.

Deciding whether or not it is reasonable to release personal information can be a complex process. The context in which information appears in a document is important.

Checklist of factors

The following checklist is a non-exhaustive list of some of the factors to take into account when determining the reasonableness of disclosing a document which contains information relating to the personal affairs of any person:

the nature of the information in question, eg names, date of birth, private (home or mobile) contact details, health or sensitive information
the circumstances in which the information was obtained
For example Witness statements in a private investigator's circumstance report Reports produced by private investigators about the details of a claim. as part of an injury claim assessment.
whether the opinion of the individual whose personal information is contained in the document is known or if a consent/authority has been provided (for example witness statements within circumstance reports generally contain a witness' consent to disclose to a worker or the employer upon request)
whether the information is already in the public domain
whether disclosure would be reasonably likely to endanger the life or physical safety of any person
the worker’s interests in seeking the information or documents
whether the information sought had any relevance or would be of any assistance to the worker or would be in the public’s interest for it to be disclosed
whether the worker’s purpose for seeking access will be achieved if the information is disclosed
whether disclosure would be detrimental to the public interest (excluding the public interest in protecting an individual’s privacy)
if the public interest would be promoted by releasing the information
whether the worker seeking the information could have done so by using alternative methods, eg court order
the likelihood that the worker will disseminate or disclose the information.

The checklist is not exhaustive and some factors will have greater relevance than others for each request.

For exampleIt may be relevant if the worker has a history of violence, threats or harassment of others. This exemption would be activated where it appears possible that a worker might inflict harm on another because of the nature of the information to be released. The other person could be a spouse Spouse of a person means a person to whom that person is married, relative, witness, medical provider, lawyer, Agent employee or WorkSafe employee. However, the name and contact details of the authors of medical, occupational rehabilitation assessments or reports and case conference or meeting notes, are not generally exempt from disclosure to the individual worker without any evidence to the contrary or objection recorded on file/ACCtion.

For a document to be declined on the basis of endangering a person, there must be a clear connection between the information to be released and the likelihood of harm. There must be a real and genuine prospect that such harm will eventuate, not merely a possibility or supposition. Information in the public domain/publications, including public registers (Australian Health Practitioners Regulation Agency for health practitioners or Legal Services Board for legal practitioners) is not exempt and therefore disclosure is not unreasonable.

See: Information that can be released

Individuals affected by release of personal information considered to be unreasonable

An Agent, in deciding whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person, must:

notify the person who is the subject of that information (or if that person is deceased, that person's next of kin) that the Agent has received a request for access to the document and
seek that person's view as to whether disclosure of the document should occur and
state that if the person consents to disclosure of the document or disclosure subject to deletion of information relating to the personal affairs of the person, the person is not entitled to apply for review of a decision to grant access to that document.

Despite the above, an Agent is not required to notify a person if:

the notification would be reasonably likely to endanger the life or physical safety of that person or cause that person undue distress or is otherwise unreasonable in the circumstances or
the person to be notified is a primary person and the notification would be reasonably likely to increase the risk to that person's safety from family violence or
it is not practicable to do so.

If an Agent decides to grant access to documents which would otherwise be exempt because disclosure of an individuals’ personal information would be unreasonable, the exemption requires the Agent, where practicable and prior to granting access, to:

notify the individual or individuals affected of their decision and
notify the individuals of their right to appeal the decision.

Statements made by witnesses as part of a circumstance report are generally not exempt when sought by the worker (or the employer). They provide consent of the witness and include disclosures that have been made in decision notices or statements to workers or employers, assessing the evidence and summarising the circumstance results, which expressly identify witnesses. However, information or opinions about or attributed to other individuals/third parties would more likely be exempt. Agents need to review documents carefully, rather than assume the contents are the same in all documents.

In general, the disclosure of names of Agent or WorkSafe officers and contractors (including health and legal practitioners) connected with the management of a claim, is not considered to be unreasonable as a matter of course.

The names of junior officers, personal assistants, paralegals or assistants may, depending on their role and particular circumstances, be exempt and are generally not disclosed. Due to the volume of requests and documents processed in each request, it is also considered impracticable for Agents to consult with/notify all individuals or officers whose names appear on documents proposed for release under the WIRC Act. However, where there is evidence of disputes or harassment or where a request appears to be out of context/non-typical, the Agent must balance relevant considerations and seek the view of the affected individual, approved provider or practitioner.

1.2.6.6 Interrelationship with privacy laws

Generally, if a request seeks access to documents containing information about a worker’s own personal information, this will not raise issues with privacy laws.

Provided the provisions in the personal affairs exemption section are appropriately considered and applied, the release of personal information as a result of an ATI request will not constitute an interference with the privacy of an individual under privacy laws.

Both the PDP Act Privacy and Data Protection Act 2014 and the HR Act Health Records Act provide that where the provisions of these Acts are inconsistent with other legislation, the other legislation (in this case, the WIRC Act) prevails to the extent of the inconsistency.

However, issues relating to the Information Privacy Principles/Health Privacy Principles of the PDP Act /HR Act regarding use and disclosure may arise where an Agent or WorkSafe:

discloses the personal information of a third party as part of a WIRC Act application without taking reasonable steps to notify the individual whose personal information is intended to be released and giving them the opportunity to object or
discloses the whole of a claim file or records/files not sought under the request (eg when the scope of the request is for a specific document/s or a single claim or part of a claim) or
releases the original file/records (potential loss of information) or
does not consider the exemptions provided in the WIRC Act.

WIRC s9(4)(a)

For exampleA privacy breach might be alleged where information was provided by a third person in confidence and then released under an ATI request without considering the exemption or notifying the third person. The confidential nature of the communication may be implied or explicit.

See: Privacy and Data Protection Act 2014 | Health Records Act 2001

1.2.6.7 Serious threat to life or health

If an Agent seeks to refuse access to documents containing health information about a person on the basis that disclosure would pose a serious threat to the life of health of that or any other person, there are specific requirements which must be satisfied.

Health information

In some limited cases the Agent can refuse to provide a worker with access to their own health information. Health information is defined very broadly and includes:

information or an opinion about:

the physical, mental or psychological health (at any time) of an individual or
a disability (at any time) of an individual or
an individual's expressed wishes about the future provision of health services to him or her or
a health service provided or to be provided, to an individual —

that is also personal information or

other personal information collected to provide or in providing, a health service or
other personal information about an individual collected in connection with the donation or intended donation, by the individual of his or her body parts, organs or body substances or
other personal information that is genetic information about an individual in a form which is or could be predictive of the health (at any time) of the individual or of any of his or her descendants.

WIRC s9(6)

When to deny access

The Agent must not give a worker access to health information if:

they believe on reasonable grounds that giving access would pose a serious threat to his or her life or health or the life of any other person or
the health information has been provided in confidence by a person other than the individual or a health service provider (eg a relative, friend, employer) with a request that the information not be communicated to the individual.

If in doubt check with the author of the document and/or refer the documents to a Medical Advisor.

Review by the health services commissioner

If an Agent decides to apply this exemption, it must provide reasons for refusing access and advise the worker of his or her right to seek a review of the decision by the Health Services Commissioner.

Reasonable grounds

The Agent must consider whether or not they have reasonable grounds to believe that release of the document sought would pose a serious threat to the life or health of the person seeking access to it, for example:

is the person suicidal?
is the person psychotic?
is the person severely depressed?
does the person have any other mental condition?

There must be a genuine belief, based on proper evidence and reasoning, that release of the health information would pose a serious threat to the worker. If there is no evidence of a past or present mental or psychiatric condition, it is unlikely that a serious threat exists.

There is no obligation to inquire about the individual’s mental or physical health or to ensure that they are not suffering from a particular condition. Such an inquiry is likely to be unnecessarily intrusive.

Procedure

When this exemption applies, the procedure set out in the HR Act is to be followed:

if the Agent's preliminary assessment finds that releasing one or more document containing health information may pose a serious threat to the life or health of the worker, the health information should be referred to the Medical Advisor. To assist the Medical Advisor to make the final decision regarding whether or not releasing the health information is likely to represent a serious threat, the Agent must attach a red tag/flag to each document or parts of documents which may be exempt in line with this exemption and must highlight the documents or parts of documents which are exempt on other grounds.
if the Medical Advisor decides there is a serious threat, the Agent must write to the worker asking them to nominate a health practitioner who has agreed to act as a nominated health practitioner and who understands the functions of that role under the HR Act, with whom the Medical Advisor will discuss the information. At this stage, any other non-exempt documents are to be released to the worker with the decision letter.
after the Medical Advisor and the worker’s nominated health practitioner have discussed the health information, the Agent must send this information only to the agreed nominated health practitioner.
the worker’s agreed nominated health practitioner must then decide what, if any, information will be released to the worker and in what form.

Worker’s nomination of health practitioner

The nominated health practitioner must be qualified to explain the health information to the worker.

For example Health information about a psychological condition would not be sent to a physiotherapist Registered physiotherapist means a person registered under the Health Practitioner Regulation National Law to practise in the physiotherapy profession (other than as a student)..

Medical advisor is not available

Medical Advisors are available at Agents to receive a referral of relevant documents for decisions under this provision.

If a Medical Advisor is not available, the Agent may contact the Clinical Panel on 03 9641 1070.

1.2.6.8 Information provided in confidence

WIRC s9(4)

Information is exempt if its disclosure would:

divulge any information communicated in confidence to an Agent or WorkSafe and
be contrary to the public interest as it would be reasonable likely to impair the ability to obtain similar information in the future.

It is necessary to concentrate on the effect the release would have on the flow of information to the Agent or WorkSafe. The confidential nature of the communication may be implied or explicit.

A document or communication from an employer or contracted service provider (clinical or medical advisor, OR Occupational Rehabilitation, IME Independent Medical Examiner / Independent Medical Examination etc) is not automatically exempt under this exemption. Agents must review the content of each document and determine whether it satisfies the above requirements/criteria. Many communications are routine and simply relate to claim management, invoicing and payments, weekly rates/salary or benefits, appointments and the return to work arrangement.

See: Public interest test

Investigations, surveillance, clinical, medical, occupational rehabilitation assessments or reports and the name and contact details of authors are not generally exempt from disclosure to the individual worker without evidence or objections noted on the report/file. This applies to documents or circumstances where reports are routinely stamped or where it is noted under standard cover note that the report is confidential or subject to medico-legal privilege. There must be an explanation or reasons why Agents form the view that a document is confidential under this exemption.

Disclosure likely to affect ability to obtain similar information in the future

Where it is likely that the release of information/documents would reduce the likelihood that an informant would come forward with valuable information in future, such information/documents are not to be released. Generally, communications (including emails) between employers and Agents regarding the management or administration of a claim is not exempt. Agent officers must review and assess each document and reach a decision based on the content and surrounding circumstances of each document or claim. Such communications between employers and Agents are more likely not to be exempt on this ground.

WIRC s9

For example Claim files may contain letters or file notes of conversations with third parties about a worker where it may be apparent that the information was provided in confidence. At times workers, employers, providers or others may be investigated for possible unlawful activity about a claim.
Documents created during an investigation would be exempt because disclosure would be reasonably likely to prejudice the effectiveness of the investigation. Information communicated in confidence remains confidential even though it may turn out to be false or unjustified. It is not only the impact on the specific claim that can be taken into account but also the implications for other claims. Whether disclosure of the information in question would be reasonably likely to impair the ability to obtain similar information in future is a question of fact.
It is not sufficient that informants would be merely reluctant to provide information in the future. Whether the release of information is reasonably likely to impair the ability to obtain similar information in future will be determined on a case-by-case basis. A document that bears the words ‘In Confidence’ is not of itself sufficient.

1.2.6.9 Information requested in previous 12 months

WIRC s9(4)(b)

Under the WIRC Act where information is:

the subject of a previous request from the worker and
a decision has been made within the previous 12 months to either grant or refuse access to the information.

The current ATI request can be refused if it is for the same information or documents.

Where information was previously released

Where the request is for information that had been previously released to the worker and the worker is able to demonstrate a reasonable excuse why it is necessary to make the request again, the request should be processed as normal.

It might be reasonable, for example, if the worker satisfies the Agent that he or she no longer has access to the material previously received. However, if a worker seeks access to the same information previously released simply because they have changed legal representatives, the worker should contact the former legal representative to request the information.

The Agent may contact the worker to clarify whether they seek access to all claim file information or only the information created since their last request.

Where information was previously refused

Where information has been refused within the previous 12 months, it is not possible for the worker, without reasonable excuse, to use the WIRC Act to revisit the request and attempt to obtain a different decision.

If the worker can establish that circumstances have changed since the access was refused, the requested information may no longer be exempt.

For example A medical report obtained for the purposes of litigation might attract legal professional privilege only until it is exchanged between the parties or put into evidence in open court. Separate requests made before and after a court hearing may result in a different outcome.

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