FOI reference: FOI 5124
SiroccoPolpo
Right to Know
Email by: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear SiroccoPolpo
Decision on your Freedom of Information Request
I refer to your request of 1 May 2024 to the Department of Health and Aged Care (the
department), seeking access under the Freedom of Information Act 1982 (Cth) (FOI Act)
to:
[C]opies of all ministerial briefings or about July 2022 mentioned in FOI 5059 in
relation to seeking the Minister’s agreement for the Secretary to sign on behalf of the
Department a collaboration arrangement with HTA agencies in Canada and the UK.
I am authorised under subsection 23(1) of the FOI Act to make decisions in relation to
Freedom of Information requests. I am writing to notify you of my decision on your
request.
Background
A current version of the collaboration arrangement can be found at:
https://urlsand.esvalabs.com/?u=https%3A%2F%2Fwww.nice.org.uk%2FMedia%2
FDefault%2FAbout%2Fwhat-we-do%2FResearch-and-development%2FAUS-CAN-
NZ-UK-collaboration-arrangement-2023-1.pdf&e=9f250c40&h=e26cb7a5&f=y&p=n.
In addition, please note the address found on page 11 and 16 of document 1A for
Health Technology Wales has changed since the draft version attached to document 1
(the ministerial submission). The correct address for Health Technology Wales (HTW)
Velindre University NHS Trust Headquarters is Unit 2 Charnwood Court, Hoel
Billingsley, Parc Nantgarw, CF15 7QZ United Kingdom.
FOI decision
I have identified one document with an attachment that is relevant to your request.
This document was in the possession of the department when your request was
received.
GPO Box 9848 Canberra ACT 2601 - www.health.gov.au
- 2 -
I have decided to:
give access to one document and an attachment in part, subject to the deletion
of exempt and irrelevant material.
A schedule setting out the document relevant to your request, with my decision in
relation to this document and its attachment, is at ATTACHMENT A.
My reasons for not providing access to material that has been deleted from the
document and attachment are set out in ATTACHMENT B.
Legislative provisions
The FOI Act, including the provisions referred to in my decision, are available on the
Federal Register of Legislation website: www.legislation.gov.au/Series/C2004A02562.
The Privacy Act 1988 (Cth) (Privacy Act), can also be accessed from the Federal
Register of Legislation website here: www.legislation.gov.au/Series/C2004A03712.
Your review rights
I have set out your review rights at ATTACHMENT C.
Publication
Where I have decided to release documents to you, the department may also publish
the released material on its Disclosure Log. The department will not publish personal
or business affairs information where it would be unreasonable to do so.
For your reference the department’s Disclosure Log can be found at:
www.health.gov.au/resources/foi-disclosure-log.
Contacts
If you require clarification of any matters discussed in this letter you can contact the
FOI Section on (02) 6289 1666 or at xxx@xxxxxx.xxx.xx.
Yours sincerely
Nikolai Tsyganov
Assistant Secretary
Pricing and PBS Policy Branch
19 June 2024
- 4 -
ATTACHMENT B.
REASONS FOR DECISION
FOI 5124
1.
Material taken into account
In making my decision, I had regard to the following:
the FOI Act
guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines)
the terms of your FOI request as outlined above
submissions from international parties consulted about document which
contain information concerning them
the content of the document sought, and
advice from departmental officers with responsibility for matters relating to
the documents sought.
2.
Finding of facts and reasons for decision
My findings of fact and reasons for deciding that the exemptions identified in the
schedule of documents apply to the parts of document are set out below.
3.
Section 22 – deletion of irrelevant material
Section 22 of the FOI Act applies to documents containing exempt material
(subparagraph (1)(a)(i)) and irrelevant information (subparagraph (1)(a)(ii)) and
allows an agency to delete such material from a document.
I have deleted material in document 1 and 1A which can reasonably be regarded as
irrelevant to your request. This information has been marked ‘s22’ in the documents
released to you.
When your request was acknowledged on 2 May 2024, we notified you that names of
below Senior Executive Staff and direct telephone numbers of all employees would be
considered irrelevant to the scope of your request unless you told us that you were
seeking access to that material. On the basis that you did not notify us otherwise, this
information has been deleted under section 22 of the FOI Act as outlined above.
4.
Section 47E - Documents affecting certain operations of agencies
Section 47E of the FOI Act provides that a document is conditionally exempt if its
disclosure would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
- 5 -
(b) prejudice the attainment of the objects of particular tests, examinations or
audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Paragraph 6.84 of the Guidelines states that section 47E conditionally exempts a
document where disclosure would, or could reasonably be expected to, prejudice or
have a substantial adverse effect on certain identified agency operations.
Paragraph 6.112 of the FOI Guidelines states:
An agency’s operations may not be substantially adversely affected if the disclosure
would, or could reasonably be expected to lead to a change in the agency’s processes
that would enable those processes to be more efficient.
Paragraph 6.115 of the FOI Guidelines states that the predicted effect must bear on the
department’s ‘proper and efficient’ operations, that is, the department is undertaking
its expected operations in an expected manner. Where disclosure of the documents
reveals unlawful activities or inefficiencies, this element of the conditional exemption
will not be met and the conditional exemption will not apply.
I am satisfied that parts of the document 1A marked ‘s47E(d)’ contain information,
namely internal operational email addresses, which, if publicly disclosed would or
could reasonably be expected to, have a substantial and an unreasonable effect on the
department’s proper and efficient operations. These email addresses support
operational activities that are being undertaken in an expected and lawful manner, and
their disclosure would not reveal inefficiencies in the way in which the department
conducts these operational activities. I am satisfied that, were this information to be
disclosed, the relevant departmental business area would, or could reasonably be
expected to, receive a significant amount of unsolicited correspondence which it is not
resourced to manage, and that this would have a substantial and unreasonable impact
on the proper and efficient conduct of the operations of the department.
For the reasons outlined above, I have decided that the parts of the document 1A
marked ‘s47E(d)’ is conditionally exempt from disclosure under section 47E of the FOI
Act.
Where a document is found to be conditionally exempt, the department must give
access to that document unless access to the document at this time would, on balance,
be contrary to the public interest. I have addressed the public interest considerations
below.
5.
Section 47F – Documents affecting personal privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information about
any person (including a deceased person).
- 6 -
Personal Information
Personal information has the same meaning as in the Privacy Act. Specifically,
section 6 of the Privacy Act provides that personal information means information or an
opinion about an identified individual, or an individual who is reasonably identifiable
whether the information or opinion is true or not; and whether the information or
opinion is recorded in a material form or not.
Paragraph 6.126 of the FOI Guidelines states that for particular information to be
personal information, an individual must be identified or reasonably identifiable.
Paragraph 6.125 of the FOI Guidelines states that personal information can include a
person’s name, address, telephone number, date of birth, medical records, bank
account details, taxation information and signature.
An individual is a natural person rather than a corporation, trust, body politic or
incorporated association.
I am satisfied that parts of the document 1A marked ‘s47F’ includes personal
information.
Unreasonable Disclosure of Personal Information
Subsection 47F(2) of the FOI Act provides that in determining whether the disclosure
would involve the unreasonable disclosure of personal information, I must have
regard to the following matters:
(a) the extent to which the information is well known
(b) whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document
(c) the availability of the information from publicly accessible sources
(d) any other matters that the agency or Minister considers relevant.
Paragraph 6.133 of the FOI Guidelines states that:
The personal privacy conditional exemption is designed to prevent the unreasonable
invasion of third parties’ privacy. The test of ‘unreasonableness’ implies a need to
balance the public interest in disclosure of government-held information and the private
interest in the privacy of individuals. The test does not, however, amount to the public
interest test of s 11A(5), which follows later in the decision making process. It is possible
that the decision maker may need to consider one or more factors twice, once to
determine if a projected effect is unreasonable and again when assessing the public
interest balance.
I note that the AAT, in Re Chandra and Minister for Immigration and Ethnic Affairs [1984]
AATA 437 at paragraph 51-52, stated that:
... whether a disclosure is ‘unreasonable’ requires … a consideration of all the
circumstances, including the nature of the information that would be disclosed, the
circumstances in which the information was obtained, the likelihood of the information
being information that the person concerned would not wish to have disclosed without
consent, and whether the information has any current relevance … it is also necessary in
my view to take into consideration the public interest recognised by the Act in the
- 7 -
disclosure of information … and to weigh that interest in the balance against the public
interest in protecting the personal privacy of a third party ...
Paragraphs 6.137 and 6.138 of the FOI Guidelines state:
6.137
Key factors for determining whether disclosure is unreasonable include:
a) the author of the document is identifiable
b) the documents contain third party personal information
c) release of the documents would cause stress on the third party
d) no public purpose would be achieved through release.
6.138
As discussed in the IC review decision of ‘FG’ and National Archives of
Australia [2015] AICmr 26, other factors considered to be relevant include:
the nature, age and current relevance of the information
any detriment that disclosure may cause to the person to whom the
information relates
any opposition to disclosure expressed or likely to be held by that person
the circumstances of an agency’s or minister’s collection and use of the
information
the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
any submission an FOI applicant chooses to make in support of their
application as to their reasons for seeking access and their intended or likely
use or dissemination of the information and
whether disclosure of the information might advance the public interest in
government transparency and integrity.
I am satisfied that the disclosure of personal information contained within document
1A would, in the circumstances, constitute an unreasonable disclosure of personal
information for the following reasons:
the individuals whose personal information is contained in the document are
identifiable
no further public purpose would be achieved through the release of the
personal information
the information is current and has not lost its sensitivity through the passage of
time
the individuals would not expect the information to be placed in the public
domain, and detriment may be caused to the individuals to whom the
information relates
the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act, and
- 8 -
release of the information would be contrary to the objectives of the Privacy Act
1988.
In making my decision, I have consulted with the affected third parties regarding the
disclosure of their personal information, and I have considered any concerns raised by
those individuals.
For the reasons outlined above, I have decided that the parts of document 1A marked
‘s47F’ are conditionally exempt from disclosure under section 47F of the FOI Act.
Where a document is found to be conditionally exempt, the department must give
access to that document unless access to the document at this time would, on balance,
be contrary to the public interest. I have addressed the public interest considerations
below.
6.
Disclosure is not in the public interest
Pursuant to subsection 11A(5) of the FOI Act, the department must give access to
conditionally exempt documents unless access to the documents at that time would,
on balance, be contrary to the public interest. I have therefore considered whether
disclosure of the document 1A would be contrary to the public interest.
Factors favouring disclosure
Subsection 11B(3) of the FOI Act provides that factors favouring access to documents
in the public interest include whether access to the documents would do any of the
following:
(a)
promote the objects of the FOI Act (including all matters set out in
sections 3 and 3A);
(b)
inform debate on a matter of public importance;
(c)
promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Having regard to the above, I consider that disclosure of the conditionally exempt
information at this time:
would provide access to documents held by an agency of the Commonwealth
which would promote the objects of the FOI Act by providing the Australian
community with access to information held by the Australian Government.
would not inform debate on a matter of public importance,
would not promote effective oversight of public expenditure, and
would not allow you access to your own personal information.
- 9 -
Factors weighing against disclosure
I consider that the following public interest factors weigh against disclosure of the
conditionally exempt information at this time, on the basis that disclosure:
Section 47E(d)
the disclosure of internal operational email addresses could reasonably be
expected to impede the flow of information to the department and moreover
would not provide any additional benefit to the public, as the department, in
my view, has sufficient existing channels of communication for the public to
use.
Section 47F
could reasonably be expected to prejudice the protection of the relevant
individuals’ right to personal privacy, which is contrary to the objects of the
Privacy Act 1988,
the substance of the documents has been released to you and disclosure of the
personal information would not provide you with any further insight into the
workings of government or international organisations, and
would not achieve any public purpose and, on balance, would harm the
individual’s right to personal privacy.
In making my decision, I have not taken into account any of the irrelevant factors set
out in subsection 11B(4) of the FOI Act, which are:
(a) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the
Commonwealth Government;
(b) access to the document could result in any person misinterpreting or
misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to
which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Conclusion
For the reasons set out above, after weighing all public interest factors for and against
disclosure, I have decided that, on balance, disclosure of the conditionally exemption
information would be contrary to the public interest. I am satisfied that the benefit to
the public resulting from disclosure is outweighed by the benefit to the public of
withholding the information.
- 10 -
ATTACHMENT C.
YOUR REVIEW RIGHTS
If you are dissatisfied with my decision, you may apply for a review.
Internal review
You can request internal review within 30 days of you receiving this decision. An
internal review will be conducted by a different officer from the original decision
maker.
No particular form is required to apply for review although it will assist your case to
set out the grounds on which you believe that the original decision should be changed.
Applications for internal review can be made by:
Email:
xxx@xxxxxx.xxx.xx
Mail:
FOI Unit (MDP 516)
Department of Health and Aged Care
GPO Box 9848
CANBERRA ACT 2601
If you choose to seek an internal review, you will also have a right to apply for
Information Commissioner review (IC review) of the internal review decision once it
has been provided to you.
Information Commissioner review or complaint
You also have the right to seek Information Commissioner (IC) review of this decision.
For FOI applicants, an application for IC review must be made in writing within
60 days of the decision. For third parties who object to disclosure of their information,
an application for IC review must be made in writing within 30 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge
a complaint with the OAIC. However, the OAIC suggests that complaints are made to
the agency in the first instance.
While there is no particular form required to make a complaint to the OAIC, the
complaint should be in writing and set out the reasons for why you are dissatisfied
with the way your request was processed. It should also identify the Department of
Health and Aged Care as the agency about which you are complaining.
You can make an IC review application or make an FOI complaint in one of the
following ways:
online at www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/
via email to xxxxx@xxxx.xxx.xx
by mail to GPO Box 5218 Sydney NSW 2001, or
- 11 -
by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is
available on the OAIC website here: www.oaic.gov.au/freedom-of-information/foi-
review-process.
Complaint
If you are dissatisfied with action taken by the department, you may also make a
complaint directly to the department.
Complaints to the department are covered by the department’s privacy policy. A form
for lodging a complaint directly to the department is available on the department’s
website here: www.health.gov.au/about-us/contact-us/complaints
