FOI reference: FOI 25-0018 LD IR
Ash Roth
Right To Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ash Roth
Decision on your Freedom of Information Request for Internal Review
I refer to your request of 12 November 2024 to the Department of Health and Aged
Care (the department), requesting an internal review of the department’s decision on
access dated 7 November 2024 (the original decision) under the
Freedom of Information
Act 1982 (Cth) (FOI Act).
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.
Original FOI request
On 11 September 2024, you requested 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-assessmentpolicy-and-
methods-review-final-report?language=en).
Original FOI decision
On 7 November 2024, a decision was made to refuse access to one document as it
contains fully exempt material.
Your submissions
In making your request for the department to review its original decision on access,
you have provided the following submissions:
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
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This is a request to understand the use of taxpayer funds on artwork commissioned by the
Department for a public report. It is completely unreasonable for the amount of taxpayer
funding used to commission this work to be hidden from the public.
Internal Review Decision
You have requested access to data that is held in computer systems ordinarily available
to the department. Pursuant to section 17 of the FOI Act, the department used its
computer systems to produce one written discrete document that contains the
information you are seeking to access.
Under section 54C of the FOI Act, I have decided to vary the original decision and
refuse access in another form, as the document in scope of your request contains fully
exempt material.
A schedule setting out the document relevant to your request, with my decision in
relation to it, is at
ATTACHMENT A.
My reasons for not providing access to material that has been deleted from the
document is 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
Your review rights
I have set out your further review rights at
ATTACHMENT C.
Contacts
If you require clarification of any matters discussed in this letter you can contact the
FOI Unit on (02) 6289 1666 or at xxx@xxxxxx.xxx.xx
Yours sincerely
Melissa Evans
A/g First Assistant Secretary
People, Communication and Parliamentary Division
22 November 2024
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ATTACHMENT B.
REASONS FOR INTERNAL REVIEW DECISION
FOI 25-0018 LD IR
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
• the terms of your FOI request as outlined above
• the content of the document sought
• your request for internal review and submissions made to support that request
• advice from departmental officers with responsibility for matters relating to the
document sought, and
• submissions from third parties consulted about the document which contains
information concerning them.
2. Finding of facts and reasons for decision
My findings of fact and reasons for deciding that the exemptions identified in the
schedule apply to the document is set out below.
3. Section 47 - Documents disclosing trade secrets or commercially valuable
information
Subsection 47(1) of the FOI Act provides that a document is an exempt document if its
disclosure would disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information
were disclosed.
Commercially valuable information
Paragraphs 5.234 and 5.235 of the FOI Guidelines state:
5.234 To be exempt under s 47(1)(b) a document must satisfy two criteria:
• the document must contain information that has a commercial value either
to an agency or to another person or body, and
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• the commercial value of the information would be, or could reasonably be
expected to be, destroyed or diminished if it were disclosed.
5.235 It is a question of fact whether information has commercial value, and whether
disclosure would destroy or diminish that value. The commercial value may relate,
for example, to the profitability or viability of a continuing business operation or
commercial activity in which an agency or person is involved. The information need
not necessarily have ‘exchange value’, in the sense that it can be sold as a trade secret
or intellectual property. The following factors may assist in deciding in a particular
case whether information has commercial value:
• whether the information is known only to the agency or person for whom
it has value or, if it is known to others, to what extent that detracts from its
intrinsic commercial value
• whether the information confers a competitive advantage on the agency or
person to whom it relates — for example, if it lowers the cost of
production or allows access to markets not available to competitors
• whether a genuine “arm’s-length” buyer would be prepared to pay to
obtain that information
• whether the information is still current or out of date (out of date
information may no longer have any value), and
• whether disclosing the information would reduce the value of a business
operation or commercial activity — reflected, perhaps, in a lower share
price.
You have requested information about the cost of artwork used in a government
report.
I am satisfied that the financial information contained in the document produced by
the department:
• is only known to the department and the affected third party for whom it has
value
• is not known to others, so that disclosure of the information would detract from
its intrinsic commercial value
• confers a competitive advantage on the affected third party, and could provide
the affected third party with access to markets not available to its competitors
• is still current, and retains its intrinsic value to the affected third party, and
• would reduce in value to the business operations or commercial activities of
the affected third party if disclosed.
On the basis of the information before me, I am satisfied that the information contained
in the document has a commercial value which would be diminished or destroyed by
release of the document. I am satisfied that the financial information contained in the
document is of recent date, and its release would provide competitors with a
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commercial advantage when bidding against the affected third party for future work
opportunities. Release of the document could, therefore, reasonably be expected to
adversely impact the commercial and financial affairs of the third party in terms of
both its profitability and continuity. In this case, the adverse impact is likely to be
compounded by the fact that the affected third party is a small provider working in a
niche area of commercial art.
As notified to you on 2 October 2024, in accordance with the obligations under section
27 of the FOI Act, the department consulted with an affected third-party. In making
my decision on access to the relevant documents, I have taken into consideration the
submissions made during that consultation process.
For the reasons outlined above, I have decided that the document marked ‘s47’ in the
schedule is exempt from disclosure under section 47 of the FOI Act.
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ATTACHMENT C.
YOUR FURTHER REVIEW RIGHTS
If you are dissatisfied with my decision, you may apply for a review by the Information
Commissioner.
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
• 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
