FOI reference: FOI-5165
Kath
Email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Kath
Decision on your Freedom of Information Request
I refer to your request of 29 May 2024 to the Department of Health and Aged Care (the
department) seeking access to documents under the
Freedom of Information Act 1982
(Cth) (FOI Act). The scope of your request is for:
All correspondence including briefs, emails, meeting records and other documents
received from clinicians, health services and/or health service providers who have
provided feedback on the change of pump supplied under the Insulin Pump Program
since September 2023.
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
access request.
Extensions of time to process request
On 25 June 2024, the department informed you that it was consulting with third parties
whose information was contained in documents identified as relevant to your request
under sections 27 and 27A of the FOI Act. As a result, the statutory timeframe for your
request was extended by 30 days to 28 July 2024.
On 18 July 2024, the department wrote to you under section 15AA of the FOI Act
seeking a 10-day extension of time to allow it to process your FOI request.
On 19 July 2024, you responded to the department agreeing to the extension of time
request. As a result, the statutory date for your FOI access request was extended to
7 August 2024.
On 31 July 2024, the department wrote to you under section 15AA of the FOI Act
seeking a 20 day extension of time, as the department had identified an additional
third party that would need to be consulted.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
link to page 4 link to page 6
- 2 -
On 6 August 2024, you responded to the department agreeing to the extension of time
request. As a result, the statutory date for your FOI access request was extended to
27 August 2024.
Reasonable searches
The department has conducted reasonable searches for documents in scope of your
request. As per the FOI Guidelines [at 3.89], these searches were undertaken with
reference to:
• the subject matter of your request
• the department’s current and past file management systems
• the department’s record management systems
• the individuals within the department with knowledge of the subject matter of
the documents, or who could assist with location of documents
• the age of the documents.
I am satisfied that the searches undertaken were both thorough and reasonable in the
context of the scope of your request, the resources of the department, and the
requirements of the FOI Act and Information Commissioner’s Guidelines.
Decision on access
I have identified 15 documents that are relevant to your request.
These documents were in the possession of the department when your request was
received.
I have decided to give access to 15 documents in part, subject to the deletion of exempt
and irrelevant material.
A schedule setting out the documents relevant to your request, with my decision in
relation to those documents, is at
ATTACHMENT A.
My reasons for not providing access to material that has been deleted from the
documents are set o
ut in ATTACHMENT B.
You were informed on 25 June 2024 that consultation with third parties would be
necessary.
A contention has been made by more than one third party that parts of the documents
should be exempt from release under the FOI Act. My decision has been to grant access
to that material in part. As such, the relevant third parties will have review rights
under the FOI Act. As a result, I am unable to provide you with access to the
information in all documents until the time for the opportunity for third parties to
apply for a review runs out.
You will be contacted by the department as soon as any review rights have run out.
link to page 15
- 3 -
Please refer to t
he FOI Guidelines [at 3.198 – 3.202] for further information about
third-party review
rights.
Legislative provisions
The FOI Act, including the provisions referred to in my decision, is available on the
Federal Register of Legislation websit
e: www.legislation.gov.au/Series/C2004A02562.
The
Privacy Act 1988 (Cth) (Privacy Act), can also be accessed from the Federal
Register of Legislation website her
e: www.legislation.gov.au/Series/C2004A03712.
Your review rights
I have set out your review rig
hts 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, as required by section 11C of the FOI Act.
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
Sarah Norris
Assistant Secretary
Pharmacy Branch
26 August 2024
- 4 -
ATTACHMENT A.
SCHEDULE OF DOCUMENTS
FOI REQUEST - 5165
Document Pages
Date
Description
Decision on
Relevant
access1
provisions
of FOI Act
1
2
16/11/2023 Letter from Royal Hobart
exempt in part
s47F
Hospital
2
2
12/1/2024
Letter from ANZSPED
exempt in part
s47E(d)
s47F
3
2
3/11/2023
Email
exempt in part
s22
s47E(d)
s47F
4
3
3/11/2023
Email
exempt in part
s22
s47E(d)
s47F
5
5
5/12/2023
Email
exempt in part
s22
s47E(d)
s47F
6
2
8/11/2023
Email
exempt in part
s22
s47E(d)
s47F
7
2
13/11/2023 Email
exempt in part
s22
s47E(d)
s47F
8
4
30/11/2023 Email
exempt in part
s22
s47E(d)
s47F
s47B
9
2
2/11/2023
Email
exempt in part
s22
s47E(d)
s47F
- 5 -
10
1
3/11/2023
Letter
exempt in part s47E(d)
s47F
11
2
14/11/2023 Email
exempt in part
s22
s47E(d)
s47F
12
2
17/11/2023 Letter from the Children’s
exempt in part
s47E(d)
Hospital at Westmead
s47F
13
2
23/11/2023 Letter from Central Queensland exempt in part
s47F
Hospital and Health Services
14
2
27/11/2023 Email
exempt in part
s22
s47E(d)
s47F
15
2
6/12/2023
Letter from Sydney Children’s
exempt in part
s47E(d)
Hospital
s47F
link to page 1
- 6 -
ATTACHMENT B.
REASONS FOR DECISION
FOI 5165
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 third parties consulted about documents which contain
information concerning them
• the content of the documents 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 documents 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 the documents which can reasonably be regarded as
irrelevant to your request and prepared an edited copy for release. This information
has been marked ‘s22’ in the documents released to you.
Irrelevant information includes information that was produced when emails were
transferred to PDF format. As this information is not part of the original documents,
it is not relevant to your request.
The documents also contain the names and telephone numbers of departmental
employees. When your request was acknowledged on 31 May 2024, we notified you
that this material 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.
- 7 -
4.
Section 47B - Documents affecting Commonwealth-State relations
Section 47B of the FOI Act provides that a document is conditionally exempt if
disclosure:
(a)
would, or could reasonably be expected to, cause damage to relations
between the Commonwealth and a State; or
(b)
would divulge information or matter communicated in confidence by or
on behalf of the Government of a State or an authority of a State, to the
Government of the Commonwealth, to an authority of the
Commonwealth or to a person receiving the communication on behalf of
the Commonwealth or of an authority of the Commonwealth.
Paragraph 6.24 of the FOI Guidelines states that a document does not have to have
been supplied or written by the Commonwealth, a State agency or a State authority to
fall within this exemption. The content of the document (and potentially the reason or
circumstances why the document was created) is the deciding factor, rather than the
originator’s identity. It is also not a relevant consideration that all the parties referred
to in the document are aware of the document or of the reference to the particular
agency.
Paragraphs 6.26-6.27 of the FOI Guidelines also state:
6.26 Disclosure of the document may cause damage by, for example:
• interrupting or creating difficulty in negotiations or discussions that are
underway, including in the development of joint or parallel policy
• adversely affecting the administration of a continuing Commonwealth-
State project
• substantially impairing (not merely modifying) Commonwealth-State
programs
• adversely affecting the continued level of trust or co-operation in existing
inter-office relationships
• impairing or prejudicing the flow of information to and from the
Commonwealth.
6.27 Decision makers may also need to consider future working relationships
where disclosure may, for example:
• impair or prejudice the future flow of information
• adversely affect Commonwealth-State police operations or investigations
• adversely affect the development of future Commonwealth-State projects
6.28
The potential damage need not be quantified, but the effect on relations arising from
the disclosure must be adverse.
Having regard to the above, I am satisfied that
the part of document 8 would damage
the Commonwealth-State relationships. The information comprises a state agency’s
recommendation to the department and a precedent of disclosure would or could
reasonably be expected to have an adverse effect on the continued level of trust or co-
operation in existing inter-jurisdictional relationships.
- 8 -
In making my decision, I have consulted with the relevant State and/or Territory
government, and I have taken into account any concerns raised by the relevant State
and/or Territory.
For the reasons outlined above, I have decided that the parts of the document 8 marked
‘s47B’ is conditionally exempt from disclosure under section 47B 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 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;
(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 FOI 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.
Examples provided in paragraph 6.113 of the FOI Guidelines indicate that use of
47E(d) may be appropriate where disclosure of the information would:
• result in the need to make substantial changes to procedures to avoid
jeopardising the effectiveness or methods and procedures used by the agency
• prejudice of the ability of an agency to perform its statutory, regulatory or
public safety functions.
Paragraph 6.112 of the FOI Guidelines states that 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 state that the predicted effect of disclosure must
bear on the department’s ‘proper and efficient’ operations, that is, the department is
undertaking its expected activities in an expected manner. Where disclosure of the
- 9 -
documents reveals unlawful activities or inefficiencies, this element of the conditional
exemption will not be met and the conditional exemption will not apply.
You have requested access to documents that contain non-public facing email
addresses used by the department.
I am satisfied that the parts of the documents marked ‘s47E(d)’ contain information
which, if disclosed, would or could reasonably be expected to, have a substantial and
an unreasonable effect on the department’s proper and efficient management of its
communication channels.
If the email addresses in question were to released, it could reasonably be expected to
result in an influx of unsolicited emails to non-public facing mailboxes used for
internal administrative processes. If this occurred, the department would need to
change the addresses of or decommission those inboxes, at operational and financial
loss to the department. I am therefore satisfied that any impediment to the efficient
and effective administration of departmental emails and communication channels
would have a substantial adverse effect on the proper and efficient conduct of the
department.
In forming this decision, I note that the use of non-public facing operational email
addresses to manage administrative functions are operational activities that are being
undertaken in an expected and lawful manner. I am further satisfied that release of
these addresses would not reveal inefficiencies in the way in which the department
conducts those operational activities.
For the reasons outlined above, I have decided that the parts of the documents marked
‘s47E’ are 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.
6.
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).
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 6.123 of the FOI Guidelines states that for particular information to be
personal information, an individual must be identified or reasonably identifiable:
• whether the information is true or not, and
- 10 -
• whether the information or opinion is recorded in a material form or not.
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.
Paragraph 6.132 of the FOI Guidelines states that an individual is a natural person and
does not include a corporation, trust, body politic or incorporated association.
Section 47F specifically extends to the personal information of deceased persons.
I am satisfied that the parts of the documents marked ‘s47F’ include personal
information such as a person’s name, email address, telephone number and signature.
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 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
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
- 11 -
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 leading s 47F 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 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.
You have requested access to documents that contain:
• personal information about a number of professional individuals, including
their names, job titles and personal contact details (phone and email)
• information about a number of individuals receiving treatment through various
medical services related to the Insulin Pump Program which could reasonable
be used to identify them via their location, age and medical/treatment profiles.
I am satisfied that the disclosure of personal information contained within the
documents would, in the circumstances, constitute an unreasonable disclosure of
personal information for the following reasons:
• the individuals whose personal information is contained in documents are
identifiable
• release of this information could reasonably be expected to cause anxiety to the
individuals concerned
• 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 concerned did not consent to and 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
- 12 -
• release of the information would be contrary the objects of the
Privacy Act 1988.
In making my decision, I have consulted with affected third parties, where practicable,
regarding the disclosure of the personal information contained in documents and I
have considered any concerns raised by those individuals
. Where it has not been
practicable to undertake third party consultation, I have taken a protective stance
toward release of personal information, in line with the
Privacy Act 1988.
For the reasons outlined above, I have decided that the parts of the documents 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.
7.
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 documents would be contrary to the public interest.
Factors favouring disclosure
Section 11B 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:
• promote the objects of the FOI Act (including all matters set out in sections 3
and 3A)
• inform debate on a matter of public importance
• promote effective oversight of public expenditure, or
• 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.
- 13 -
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:
s47B(a)
• would adversely affect the administration of a continuing Commonwealth-
State program
• would damage the continued level of trust or co-operation in existing inter-
government working relationships
• would prejudice the attainment of outcomes of procurement/tender process
of
Insulin Pump Program
s47E(d)
• could reasonably be expected to divert correspondence toward communication
channels which are not intended or resourced for this purposed. Any
interference to the department’s communication channels could reasonably be
expected to result in disruption to the operations of the agency, which is against
the public interest.
• would not provide any additional benefit to the public, noting that the
department already has existing public communications channels that are, in
my view, readily available and sufficient for this purpose.
s47F
• could reasonably be expected to prejudice the protection of the relevant
individuals’ right to personal privacy, noting that 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, and
• would not achieve any public purpose and, on balance, would harm the
individual’s right to personal privacy, which would be contrary to the objects
of the
Privacy Act 1988 and therefore against the public interest.
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.
- 14 -
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.
- 15 -
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 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
• by fax to 02 9284 9666.
- 16 -
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 her
e: www.health.gov.au/about-us/contact-us/complaints
