FOI 25 0018 LD Decision on access.pdf

FOI reference: FOI 25-0018 LD
Ms Ash Roth
Email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Ms Roth
Decision on your Freedom of Information Request
I refer to your information access request of 11  September 2024,  made  to the
Department of Health and Aged Care (the department)  under the Freedom of
Information Act 1982 (Cth) (FOI Act). In your request, you sought access to:
The cost to the Department/Government of the cover artwork commissioned for the
"Health Technology Assessment Policy and Methods Review – Final report" (the report
is listed by the Department as published on 10 September 2024, available here:
https://www.health.gov.au/resources/publications/health-technology-assessment-
policy-and-methods-review-final-report?language=en).
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.
Extension of time to process request

On 2 October 2024, the department informed you that it was consulting with a third
party whose information was contained in document as relevant to your request under
section 27 of the FOI Act. As a result, the statutory timeframe for your request was
extended by 30 days to 10 November 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


GPO Box 9848 Canberra ACT 2601 - www.health.gov.au

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•  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 FOI Guidelines.
Decision on access
You have requested access to information that is held in the department’s computer
systems.
Pursuant to section 17 of the FOI Act, the department has used its computer systems
to produce one document that contains the information you are seeking to access.
I have decided to refuse access to the document in full as it contains exempt material.
A schedule setting out the document relevant to your request, with my decision in
relation to this document is at ATTACHMENT A.
My reasons for not providing access to material that has been deleted from the
document are set out in ATTACHMENT B.
Legislative provisions
The FOI Act, including the provisions referred to in my decision, is available on the
Federal Register of Legislation website: www.legislation.gov.au/Series/C2004A02562.
Your review rights
I have set out your review rights at ATTACHMENT C.
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

Leanne Ringwood
Assistant Secretary
Communication Branch
7 November 2024

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ATTACHMENT B.
REASONS FOR DECISION
FOI 25-0018 LD
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 a  third party  consulted about document which contains
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 exemption identified in the
schedule of document apply to the relevant document are set out below.
3.  Section 47G – Business information
Section 47G of the FOI Act provides that a document is conditionally exempt if its
disclosure would disclose information concerning a person in respect of his or her
business or professional affairs or concerning the business, commercial or financial
affairs of an organisation or undertaking, in a case in which the disclosure of the
information:
(a) would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or
that organisation or undertaking in respect of its lawful business,
commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information
to the Commonwealth or an agency for the purpose of the administration of
a law of the Commonwealth or of a Territory or the administration of
matters administered by an agency.
Business information
Paragraph 6.177 of the FOI Guidelines states that the conditionally exempt information
must have some relevance to a person in respect of his or her business or professional
affairs or to the business, commercial or financial affairs of an organisation or
undertaking.

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Paragraph 6.191 of the FOI Guidelines states that the use of the term ‘business or
professional affairs’ distinguishes an individual’s personal or private affairs and an
organisation’s internal affairs. The term ‘business affairs’ has been interpreted to mean
‘the totality of the money-making affairs of an organisation or undertaking as distinct
from its private or internal affairs’.
Paragraph 6.193 of the FOI Guidelines states that ‘profession’ is not static and is clearly
intended to cover the work activities of a person who is admitted to a recognised
profession and who ordinarily offers professional services to the public for a fee.
The document marked ‘s47G’ contains business affairs information that is relevant to
the business, commercial or financial affairs of an organisation, namely the cost of a
commercial transaction. This information is relevant to the profitability and financial
viability of that organisation ,and does not relate to their private or internal affairs.
As such, I am satisfied that this information is business information.
Unreasonable adverse effect of disclosure
Paragraph 6.184 of the FOI Guidelines states that the presence of ‘unreasonably’ in
subsection 47G(1) implies a need to balance public and private interests. The public
interest, or some aspect of it, will be one of the factors in determining whether the
adverse effect of disclosure on a person in respect of his or her business affairs is
unreasonable. I must therefore balance the public and private interest factors to decide
whether disclosure is unreasonable for the purposes of paragraph 47G(1)(a); but this
does not amount to the public interest test of subsection 11A(5) which follows later in
the decision process.
Paragraph 6.185 of the FOI Guidelines goes on to state that the test of reasonableness
applies not to the claim of harm but to the objective assessment of the expected adverse
effect. I must balance the public interest against a private interest of the affected third
parties, preserving the profitability of a business.
The document created under section 17 of the FOI Act states the cost of the design of
the cover art for the Health Technology Assessment Policy and Methods Review – Final
Report. This information is not publicly available, and the service provider does not
advertise its market rates.
I am satisfied that the disclosure of the business affairs information would result in an
adverse effect on the business, commercial or financial affairs of that  organisation.
Disclosure of the information could reasonably be expected to prejudice the future
supply of information from business organisation to the Commonwealth for the
purpose of the administration of a law of the Commonwealth.  Disclosure of the
information could also reasonably be expected to affect adversely the business affairs
of the service provider, as it could adversely affect its ability to attract competitively
and secure future work if its rates of service were released by the department.
In coming to this conclusion, I note that I have consulted with and given weight to the
submissions of the third party.

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For the reasons outlined above, I have decided that the document marked ‘s47G’ is
conditionally exempt from disclosure under section 47G 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.
4.  Public interest assessment
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.
Paragraph 6.5 of the FOI Guidelines states:

The public interest test is considered to be:
•  something that is of serious concern or benefit to the public, not merely
of individual interest
•  not something of interest to the public, but in the interest of the public
•  not a static concept, where it lies in a particular matter will often depend
on a balancing of interests
•  necessarily broad and non-specific and
•  relates to matters of common concern or relevance to all members of the
public, or a substantial section of the public.
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.

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•  would not inform debate on a matter of public importance
•  would promote effective oversight of public expenditure, and
•  would not allow you access to your own personal information.
Factors weighing against disclosure
I consider that the following public interest factors weigh against disclosure of the
conditionally exempt information, on the basis that disclosure:
s47G – business information
•  could reasonably be expected to expose the business or commercial affairs of a
third party supplier to the world at large and adversely affect that service
provider’s current or future business and/or commercial opportunities. Any
impediment to the ability of Australian suppliers to conduct freely their lawful
business affairs is contrary to the public interest.
•  could reasonably be expected to reduce the pool of information and service
available to the department, which would have adverse effects on the ability of
the department to source quality and cost-effective goods and services. Any
impediment to the ability of the department to conduct its lawful affairs by
procuring quality and cost-effective business services would be contrary to 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.
Conclusion
I have carefully considered the competing arguments that favour and weigh against
disclosure of the document created under section 17 of the FOI Act.
On one hand, release of information about the expenditure of public money furthers
the objects of the FOI Act. On the other hand, release of the information contained in
the document could adversely impact the viability of a small business by revealing,
and potentially disrupting, its pricing strategies and market competitiveness.
On balance, I am satisfied that the preservation of the financial information of the
affected third-party business outweighs the public interest in the disclosure of the use
of public monies in this instance.  I have therefore  decided that  disclosure of the

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conditionally exempt 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.

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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.

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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