Parallels to the ABC’s Emma Alberici could not be more obvious: the minister was embarrassed, officials were incensed, but the independent Parliamentary Library stood firm in the accuracy of its analysis.
Journalists and privacy advocates were quoting the FlagPost article, titled Law enforcement access to My Health Record data, to claim the government was being dishonest with the public during a crucial opt-out period.
Then, suddenly, the offending analysis was removed from the library’s website, and eventually replaced with a version more agreeable to the government.
Newly published correspondence reveals the pressure brought to bear, but also suggests Parliamentary Librarian Dr Dianne Heriot wasn’t explicitly forced to take down the article, as critics of the government were asserting.
More wisely than an ABC chair, no officials put in writing the prospect that any researcher be sacked. Nor do the released emails reveal much insight into what specific trigger was behind the library’s decision to accede to the request, after initially pushing back.
A government under pressure
The government’s e-health system, My Health Record, providing every person in Australia with a personal data record of medical history, went from a little used opt-in service to default-for-everyone on July 16 this year.
Privacy advocates scoured the system for weaknesses and landed on one portion of the legislation, drafted by the former Labor government, which allowed for law enforcement to request access to the records if reasonably necessary to prevent, detect, investigate or prosecute a criminal offence.
Tim Kelsey, chief executive of the Australian Digital Health Agency, which is responsible for the My Health Record system, and Health Minister Greg Hunt both claimed that such an event would never happen, as government policy was that all My Health Record data access would need a warrant.
On Monday July 23, one week after the opt-out period began, the Parliamentary Library published analysis by Nigel Brew, director of the foreign affairs, defence and security section in the library’s research branch. Journalists flocked to three claims:
- “it does not appear that the ADHA’s operating policy is supported by any rule or regulation”,
- “represents a significant reduction in the legal threshold for the release of private medical information to law enforcement”, and
- “the Health Minister’s assertions … seems at odds with the legislation”.
Within a day, Hunt couldn’t even brush past a reporter without being asked to explain why the independent Parliamentary Library rejected his assurances.
Health officials intervene
On Wednesday morning, Department of Health official Matt Yannopoulos called the research branch to ask for a correction.
Yannopoulos is a deputy secretary and the department’s chief operating officer – a band 3 — and he called Jonathan Curtis, the assistant secretary in charge of the library’s research branch – a band 1.
He followed up with a two-page email of his concerns — “URGENT – Request to correct elements of article re access to My Health Record data by law enforcement [SEC=UNCLASSIFIED]” — flagged with “High” importance.
“It is a matter for the ADHA, as the System Operator, as to how it applies the legislation and the ADHA have been open and categorical in how they do so.
“Factual context is also an important factor in assessing the application of the legislation in practice. The ADHA has indicated in the media that it has not released any documents to any law enforcement agencies in the last six years.”
Yannopoulos offered for the department’s general counsel, Jackie Davis, to provide further advice on the matter.
The library resisted. After reviewing the full complaint and talking with colleagues, Curtis replied, a little more than three hours later, stating that overall, “the statements made in the FlagPost blog are accurate and justifiable.”
Arguments in the complaint that there were no prior cases of law enforcement access didn’t persuade the researchers, who noted there had been no prior requests but that could arguably change, given the switch to opt-out had attracted a degree of public commentary.
“I would also like to point out in passing that the article itself used rather more circumspect language than is implied in some of the media reports quoting it,” Curtis added.
Curtis escalated the matter by copying in Dr Heriot, the Band 3 head of the library. At just before 10pm Yannopoulos made one more attempt via email, copying in Davis as the department’s lead lawyer:
“Our concern is that the media are quoting your article as a definitive and comprehensive statement of the law.”
He argued this had led to “incorrect public understanding” and charactised Curtis’s comment about less-circumspect media reporting as an admission of this point.
“Moreover, I understand that the role of the APH Library is to provide advice and clarity to Parliamentarians. We are of the view that the article as currently published means that Parliament is operating with an incomplete view of the law and how it is applied, which is adding to the confusion in the public debate of this very important public health issue.”
Yannopoulos requested the article be amended to make two technical corrections on existing exemptions in the Privacy Act, and include the ADHA’s fact sheet on police access.
Library concedes to demands
The next morning Curtis agreed to take the article down pending further discussion. Heriot, the head of the library, said in a media statement she “decided to temporarily take down the post” while they considered the government’s objections to it.
A little after 6pm a new version of the article was published online with a note explaining it had been “amended to reference the provisions of the Privacy Act 1988 relevant to the release of health information by private medical practitioners.
“As an adjunct task, it has also been updated to reflect developments since its original publication.
“The Library is committed to providing the highest quality information and analysis to the Parliament and always welcomes feedback on its work.”
Unmentioned was the removal of portions of the analysis that the Parliamentary Library had previously defended, including references to the Health minister and the “significant reduction in the legal threshold for the release of private medical information to law enforcement”. The revised version kept the conclusion that warrantless access by authorities, including police and tax and immigration officials, is allowed under the legislation.
Curtis emailed Davis, Health’s general counsel, rather than Yannopoulos to advise the new version was live.
The original version of the article remains cached at archive.org. The government has the authority to seek its removal, but has not done so.
Politicians anticipated interference
The Parliamentary Library was established with checks to reduce interference in its research and analysis by providing annual budget surety. This includes its Resource Agreement, which provides stable operational funding to support the library’s operations.
The agreement spells out the operations required of the Parliamentary Librarian, including providing high quality analysis, “having regard to the independence of Parliament from the
Executive Government of the Commonwealth.”