FOI 25 0019 LD IR Notice of decision.pdf

FOI reference: 25-0019 LD IR
Health Anon
Email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Health Anon
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 11 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 12 September 2024, you requested access to:

All approach to market documents and the department's procurement evaluation and
value for money assessment relating to CN4085822
https://www.tenders.gov.au/Cn/Show/af64de87-4fd4-4b89-825c-2cc0f2978db3 which
shows a contract awarded to Accenture for $289,360,500.00
CN ID: CN4085822
Agency: Department of Health and Aged Care Publish
Date: 5-Aug-2024
Category: Computer services
Contract Period: 2-Jul-2024 to 30-Jun-2026
Contract Value (AUD): $289,360,500.00
Description: ICT Transformation Delivery
Procurement Method: Open tender
Original FOI decision
On 8 November 2024 Da decision was made to:
•  grant access to one document in full


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

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•  grant access to one document in part, subject to the deletion of exempt and
irrelevant material.
Your submissions
In making your request for the department to review its original decision on access,
you stated:
Can you confirm that the Department has indeed included the full value for money assessment
as within scope of my request, and if not, why not?
In relation to section 22 of the FOI Act, in your request for a review, you submitted:
Section 22, part 3(b) requires that the grounds for the deletions be provided.
The decision maker has not provided details as to the criteria used to determine the remaining
236 pages of the committee approval minute are irrelevant to my request.
I also find it difficult to believe there are no other documents that relate to this procurement
evaluation held by your department. Would you please confirm why that is the case.
In your request for an internal review, you have also provided submissions in relation
to the application of the exemptions in sections 47D, 47E and 47G and asked the use of
the conditional exemptions be reconsidered. As conditional exemptions were applied
in making the original decision, you have  made submissions regarding the public
interest test and asked that this is re-evaluated for the reasons listed in your review
application.
Internal Review Decision
In making a fresh decision as part of this internal review, I have identified three
documents that are relevant to your request. These documents were in the possession
of the department when your request was received.
Under section 54C of the FOI Act, I have decided  to  grant greater access without
providing full access. My decision is to:
•  give access to one document in full
•  give access to two documents in part, subject to the deletion of exempt material.
A schedule setting out the documents relevant to your request, with my decision in
relation to each document, is at ATTACHMENT A.
My reasons for not providing access to material that has been deleted from the
documents 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

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The Privacy Act 1988, 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 further review rights at ATTACHMENT C.
Publication
You should be aware that 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 Unit on (02) 6289 1666 or at xxx@xxxxxx.xxx.xx
Yours sincerely

Brian Schumacher
First Assistant Secretary
Digital Transformations & Delivery Division
09 January 2025

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ATTACHMENT B.
REASONS FOR INTERNAL REVIEW DECISION
FOI 25-0019 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 documents sought
•  your request for internal review and submissions made to support that request
•  advice from departmental officers with responsibility for matters relating to the
documents sought
•  submissions from third parties consulted about documents which contain
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 of documents apply to 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 22(1)(a)(i)) and irrelevant information (subparagraph 22(1)(a)(ii)) and
allows an agency to delete such material from a document.
I have noted your contentions regarding the use of section 22 in the original decision.
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.
As noted to you on 17 September 2024, the department will consider draft and
duplicate information out of scope of your request unless advised otherwise. As no
response was received, the department has considered duplicate information as out of
scope of your request.
The information marked as ‘s22’ in document two  is  a draft of the Commitment
Approval Minute. A signed version, that is the final version, of this document has been
provided at document one.

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4.  Section 42 - Documents subject to legal professional privilege
Section 42 of the FOI Act provides that a document is an exempt document if it is of
such a nature that it would be privileged from production in legal proceedings on the
ground of legal professional privilege.
The FOI Guidelines state:
5.145  To determine the application of this exemption, the decision maker needs to
turn to common law concepts of privilege. The statutory test of client legal privilege
under the Evidence Act 1995 is not applicable and should not be taken into account.

5.148  The underlying policy basis for legal professional privilege is to promote full
and frank disclosure between a lawyer and client to the benefit of the effective
administration of justice. It is the purpose of the communication that is determinative.
Legal professional privilege protects documents which would reveal
communications between a client and their lawyer made for the dominant purpose
of giving or obtaining legal advice. The information in a document is relevant and
may assist determining the purpose of the communication, but the information itself
is not determinative.
5.149  At common law, determining whether a communication is privileged requires
a consideration of:
•  whether there is a legal adviser-client relationship
•  whether the communication was for the purpose of giving or receiving legal
advice, or use in connection with actual or anticipated litigation
•  whether the advice given is independent
•  whether the advice given is confidential
I am satisfied that the parts of the documents marked ‘s42’ consists of information that
is subject to legal professional privilege. I am satisfied that:
•  the necessary legal adviser-client relationship exists; the legal adviser was
acting in their capacity as a professional legal adviser and the giving of the
advice was attended by the necessary degree of independence
•  the communication was brought into existence for the dominant purpose of
giving or receiving legal advice
•  the advice was provided independently, and
•  the advice provided was confidential.
The information marked ‘s42’ relates to legal advice regarding the procurement of
CN4085822. I am satisfied that this information meets the requirements of section 42
and considered to be subject to legal professional privilege. Should this information be
disclosed, I am satisfied that it would be a breach of legal professional privilege
between the department and the legal services provider.
For the reasons outlined above, I have decided that the parts of the document marked
‘s42’ is exempt from disclosure under section 42 of the FOI Act.

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5.  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
•  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
I am satisfied that the relevant information contained in the documents:
•  is only known to the department and the affected third party for whom it has
value

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•  is not known to others, and disclosure of the information would detract from
its intrinsic commercial value
•  confers a competitive advantage on the affected third party, and provides the
affected third party with access to markets not available to its competitors
•  is something that a genuine “arm’s length’ buyer would be prepared to pay to
obtain
•  is still current, and retains its intrinsic value to the affected third party
•  would reduce in value to the business operations or commercial activities of
the affected third party if disclosed.
As notified to you on 5 December 2024, in accordance with the obligations under
section 27 of the FOI Act, the department has consulted with an affected third party.
In making my decision on access to the relevant documents, I have taken into
consideration the exemption submissions made during that consultation process.
The information marked ‘s47’ has a commercial value relating to a third party. Should
this information be disclosed, I am satisfied that its  release would  be, or could
reasonably be expected to destroy or diminish the commercial activities of the third
party.
For the reasons outlined above, I have decided that the parts of the document marked
‘s47’ is exempt from disclosure under section 47 of the FOI Act.
6.  Section 47C – Deliberative processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its
disclosure would disclose matter (deliberative matter) in the nature of, or relating to,
opinion, advice or recommendation obtained, prepared or recorded, or consultation
or deliberation that has taken place, in the course of, or for the purposes of, the
deliberative processes involved in the functions of an agency; or a Minister; or the
Government of the Commonwealth.
Deliberative process
Paragraph 6.54  of the FOI Guidelines states that deliberative process involves the
exercise of judgement in developing and making a selection from different options:
The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing
upon one’s course of action. In short, the deliberative processes involved in the
functions of an agency are its thinking processes –  the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a
course of action.
Deliberative matter
Paragraph 6.59 of the FOI Guidelines states that ‘deliberative matter’ is a shorthand term
for ‘opinion, advice and recommendation’ and ‘consultation and deliberation’ that is

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recorded or reflected in a document. There is no reason generally to limit the ordinary
meanings given to the words ‘opinion, advice or recommendation, consultation or
deliberation’.
The information marked ‘s47C’ relates to a draft contract of services with a third party,
if this were disclosed it would reveal the department  negotiating  positions  for
commercial activities and value for money from a third party. I am satisfied that the
parts of the documents marked ‘s47C’ contains  material that meets the criteria of
deliberative matter, and that this material forms part of a deliberative process. The
document can be characterised as the thinking process of the department.
For the reasons outlined above, I have decided that the parts of the document marked
‘s47C’ is conditionally exempt from disclosure under section 47C 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.  Section 47D - financial or property interests of the Commonwealth
Section 47D of the FOI Act provides that a document is conditionally exempt if its
disclosure would have a substantial adverse effect on the financial or property
interests of the Commonwealth or of an agency.
Paragraph 6.80 of the FOI Guidelines provides that the ‘financial or property interests
of the Commonwealth or an agency’ may relate to assets, expenditure or revenue-
generating activities.
For section 47D of the FOI Act to apply, there is a requirement that there would be a
‘substantial adverse effect’ on the financial or property interests of the Commonwealth
or an agency.
The FOI Guidelines provide [at 6.18 and 6.82]:
6.18 The term ‘substantial adverse effect’ broadly means ‘an adverse effect
which is sufficiently serious or significant to cause concern to a properly
concerned reasonable person’. The word ‘substantial’, in the context of
substantial loss or damage has been interpreted as including ‘loss or damage
that is, in the circumstances, real or of substance and insubstantial or nominal’.
6.82 A substantial adverse effect may be indirect. For example, where disclosure
of documents would provide the criteria by which an agency is to assess tenders,
the agency’s financial interest in seeking to obtain the best value for money
through a competitive tendering process may be compromised.
You contended that the information you requested related to a past procurement
process and would unlikely harm future tendering processes. You also contended that
the department must provide evidence and demonstrate a tangible and significant
financial detriment.

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A substantial adverse effect on the financial or property interests to the
Commonwealth or the department in releasing the documents regarding tendering
process may be indirect. Per the FOI guidelines at  paragraph 6.82 noted above, the
disclosure of documents may have an indirect financial detriment by compromising
the competitive tendering process.
I consider that if the information marked ‘s47D’ is disclosed, it would compromise
how the department assesses future tenders as this information provides the criteria
by which the department assess tenders. Disclosure of this information would reduce
the department’s ability to create and nurture a competitive environment of various
panel members to aid future negotiations. The reduction of panel members would in
turn impact how the department engages in negotiations of savings within contracts,
and would materially decrease the competitive environment. This would in turn
materially decrease the department's ability to negotiate future savings within
contracts.
For the reasons outlined above, I have decided that the parts of the document marked
‘s47D’  is  conditionally exempt from disclosure under section 47D  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.
8.  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.
You have made contentions that:
information that is to be exempt under section 47E(b) does not explain how the release
of information would prejudice the attainment of objectives of tests, examinations, or
audits. It simply asserts that the information relates to operational activities being
conducted lawfully and would not reveal inefficiencies.

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Taking this into consideration, the department is no longer relying on section 47E(b).
Substantial adverse effect on management or assessment of personnel (section 47E(c))
Paragraph 6.103 of the FOI Guidelines states that for this conditional exemption to
apply, the documents must relate to either:
the management of personnel – including the broader human resources policies and
activities, recruitment, promotion, compensation, discipline, harassment and
occupational health and safety, or
the assessment of personnel –  including the broader performance management
policies and activities concerning competency, in-house training requirements,
appraisals and underperformance, counselling, feedback, assessment for bonus or
eligibility for progression.
The department has statutory obligations under the Work Health and Safety Act 2011,
including a primary duty of care, so far as is reasonably practicable, to ensure that
persons are not put at risk from work carried out as part of the conduct of the
department. It is the aim of the department’s Work Health and Safety framework to
protect workers and other persons against harm to their health, safety and welfare
through elimination or minimisation of risks arising from work, and release of such
information could cause harm to their physical and mental wellbeing.
I am satisfied that disclosure of the personal information of public servants contained
in the documents relevant to your request may be substantially and adversely affect
the department’s ability to meet its statutory obligations under the WHS Act. There is
therefore a protective element to my decision to ensure that departmental staff are not
subjected to inappropriate risks or harm.
I am satisfied that the parts of the documents marked ‘s47E(c)’ relate to workplace
health and safety functions.
I am satisfied that the parts of the documents marked ‘s47E(c)’ would, or could
reasonably be expected to have, a substantial adverse effect on the management or
assessment of personnel by the department.
Substantial adverse effect on an agency’s proper and efficient conduct of operations
(Section 47E(d))
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,
and/or
•  prejudice of the ability of an agency to perform its statutory, regulatory or
public safety functions.

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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
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 information about how the
department engages with panel members for its tendering process.
In addition, you have made contentions that the FOI guidelines state that revealing
unlawful or inefficiencies do not justify the use of s47E(d), and that embarrassment
and loss of confidence are irrelevant factors to decision making. You further contended
that the department does not adequately explain how disclosure of  costing
information would impede future procurements or the department's ability to obtain
value for money procurements, and you believe that public scrutiny is required to
prompt positive change, encourage better practices and enhance efficiency.
The FOI guidelines at 6.15 state that:
[6.15] The use of the word ‘could’ is less stringent than ‘would’ and requires analysis
of the reasonable expectation rather than the certainty of an event, effect or damage
occurring. It may be a reasonable expectation that an effect has occurred, is presently
occurring, or could occur in the future.
Section 47E is not limited to the term ‘would’ but also inclusive of the term ‘could’.
Section 47E(d) may apply if the disclosure of information would, or could reasonably
be expected to, have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
Therefore,  the conditional exemption may be applied where there could be a
reasonable expectation that there is a substantial effect on the operations of an agency.
In addition, you have noted in your contentions that  on disclosure would in fact
potentially prompt positive change, encourage better practices and enhance efficiency.
Noting paragraph 6.112 of the FOI guidelines which state:
[6.112] 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.
Noting the above procurement was undertaken in a lawful and expected manner, the
disclosure of the information marked ‘s47E(d)’ would not lead to a more efficient
change in process  and would not prompt positive change and  encourage better
practices.  This is because the tender was undertaken in accordance with the
Commonwealth Procurement Rules (CPR’s) and is open to a pool of tender applicants
who are then assessed for suitability. Disclosure of this information would impact how

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the department approaches a tender process to this pool of tender applicants, where it
would unreasonably disclose the steps taken to make it a more competitive process
seeking value for money to the department. Therefore, I am satisfied that disclosure of
the information marked ‘s47E(d)’ contains information which, if disclosed, would or
could reasonably be expected to, have a substantial adverse effect on the department’s
proper and efficient operations.
I am satisfied that if the information in the documents marked ‘s 47E(d)’  were
disclosed it would / could reasonably  be expected to impact how the department
assesses future tender applications, as well as sharing vendor information which may
impact  in  how they respond. The effect if this were to occur,  would or could
reasonably be expected to impact any negotiation the department may undertake for
value for money or savings within its contract negotiations.
In this situation, the department would need to create a new competitive environment
of panel members to aid future negotiations, at significant financial and operational
cost to the department. As such, I am satisfied that it would result in a substantial
adverse effect on the proper and efficient operations of the department.
Additionally, the information marked ‘s47(d)’ contains information regarding how the
department evaluated the tender applications. If this information would be disclosed,
it would provide the criteria by which the department assessment tenders and impact
the department’s ability to obtain the best value for money through a competitive
tendering process
In forming this decision, I am satisfied the s47E(d) material contained in the documents
relates to operational activities that are being undertaken in an expected and lawful
manner, and that release of this information would not reveal inefficiencies in the way
in which the department conducts those operational activities.
You have  also 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 operations, namely,
its management of its communications channels.
If the email addresses in question were to released, it could reasonably be expected to
result in an influx of unsolicited emails to 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

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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(d)’ 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.
9.  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 6.125 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 information in the documents marked ‘s47F’ includes personal
information, such as names, email addresses and phone numbers of department and
third party staff members.
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:

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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:
•  the author of the document is identifiable
•  the documents contain third party personal information
•  release of the documents would cause stress on the third party
•  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
The documents contain the personal information of Australian Public Service (APS)
staff who are not in the Senior Executive Service (SES).
Paragraph 6.152 of the FOI Guidelines states:

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When considering whether it would be unreasonable to disclose the names of
public servants, there is no basis under the FOI Act for agencies to start from
the position that the classification level of a departmental officer determines
whether their name would be unreasonable to disclose. In seeking to claim the
exemption, an agency needs to consider the factors identified above at [6.135] –
[6.138] in the context of the document, rather than start from the assumption
that such information is exempt. However, I note that in Chief Executive Officer,
Services Australia and Justin Warren [2020] AATA 4557 (Warren), at paragraph 83,
Deputy President S A Forgie noted:
The whole of the FOI Act is a finely tuned balance between two interests. In one side
of the balance is the facilitation and promotion of access to a national resource that is
information held by Government, which enables increased public participation in
Government processes and increased scrutiny, discussion, comment, and review of
the Government’s activities. In the other is the protection of the national interest, the
essential operation of government and the privacy of those who deal with
government. It is most important, therefore, that its provisions be read very carefully
and that presumptions should not be introduced that are not expressed, or necessarily
implicit, in the words Parliament has chosen to achieve the balance that it wants.
Those words should be the starting point of any consideration rather than any
presumption that agencies and ministers should start from the position that the
inclusion of the full names of staff in documents increases transparency and increases
the objects of the FOI Act.
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 the documents are
identifiable
•  release of this information would cause anxiety to the individuals concerned
•  no further public purpose would be achieved through the release of the
personal information, noting that the personal information is included in the
document as a result of their employment circumstance
•  the information is current and has not lost its sensitivity through the passage of
time
•  the placing of the personal information of individuals who work for a
government department into the public domain has the potential to place those
individuals at risk of harassment, abuse, threats and intimidation. This would
be detrimental to the individuals concerned, and potentially also their families.
Mitigating this risk is even more important with the prevalence of social media
and technology allowing individuals to be more easily identifiable and
contactable in online environments
•  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, and

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•  the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
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.
10.  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.
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.
Therefore, parts of the documents marked ‘s47G’ contain business affairs information
that is relevant to the business, commercial or financial affairs of an organisation or
undertaking. This information is relevant to the profitability and financial viability of
an organisation or undertaking, and does not relate to its private or internal affairs.

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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.
In your submissions you contended that:
Your argument rests on the premise that disclosing information about unsuccessful
submissions would damage the reputation of the organisations involved. However, the
FOI Act emphasises transparency in government processes, including procurement.
Disclosing information about unsuccessful bids could actually enhance accountability
and provide valuable insights into the evaluation process.
I note the CPR now requires written feedback to unsuccessful tenderers so that seems
to suggest to me that the Commonwealth considers such information to be supportive
of the overarching objectives of the CPR.
You claim that disclosure would be detrimental to the profitability of businesses.
However, the letter does not offer concrete evidence or specific examples to support this
claim.
For the conditional exemption in section 47G(1) to apply, the information would/or
could have an unreasonable affect if disclosed. The conditional exemption in section
47G may apply where  an unsuccessful tender applicant’s business affairs be
reasonably affected, should their information be disclosed. While successful applicants
are published on the Austender website, unsuccessful applicants are not. Disclosure
of information regarding unsuccessful applications  could  result in a risk to future
tender applicants misrepresenting their capabilities or measures. In addition, by
disclosing unsuccessful tender applicants’ information, this may inadvertently limit
their  future business opportunities as a biased opinion could be formed to these
applicants when seeking future tender opportunities.
The documents marked ‘s47G’ contains information about pricing and costs of services
to the department, as well as the overall business affairs of a third party. 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 an organisation or undertaking. I
have also had regard to the public and private interest factors, and I am satisfied that

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the preservation of the profitability and ongoing viability of the affected third party
business outweighs the public interest in the disclosure of this information.
Subsection 47G(2) of the FOI Act provides that subsection 47G(1) does not apply to
trade secrets or other information to which section 47 applies. Section 47G has not been
applied to any information which I have previously decided is exempt under
section 47 of the FOI Act.
In making my decision, I have consulted with the affected third party regarding the
relevant business affairs information, and I have considered any concerns.
For the reasons outlined above, I have decided that the parts of the documents marked
‘s47G’ are 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.
11.  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.
Paragraph 6.224 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
•  inform debate on a matter of public importance
•  promote effective oversight of public expenditure, or

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•  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 promote effective oversight of public expenditure, and
•  would not allow you access to your own personal information.
I note your contention on the public interest test, this being:

You state that the disclosure of conditionally exempt information would “would not
inform debate on a matter of public importance “ but I disagree - I see the expenditure
of 289 million dollars to be considered a matter of public importance, and more
transparency around how the department came to award the contract would also
inform the debate.

More specifically, the OAIC guidelines list “allow or assist inquiry into possible
deficiencies in the conduct or administration of an agency or official” as one reason
why disclosure may inform debate on a matter of public importance.
As noted above, in your contention, the public expenditure of public money is its own
consideration and extends to the consideration and deliberation of the administration
of funding.1 Your submissions currently do not suggest there is further interest to be
able to consider it a matter of public importance, as noted above that the procurement
was undertaken in a lawful and expected process.2
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 47C – deliberative information
•  could reasonably be expected to prejudice the deliberative processes of forming
opinion, advice and/or recommendations by creating an environment in which
there is a chilling effect on the open consideration of all options available to the
department. Any impediment to the deliberative process could adversely
impact the effectiveness of the department’s decision-making, which is against
the public interest.

1 Janet Rice and Department of Health and Aged Care (Freedom of information) [2024] AICmr 41, 41.
2 Ibid.

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•  could reasonably be expected to establish a precedent of release of deliberative
material, which could hinder the flow of suggestions, preliminary opinions,
device and/or recommendations within the department. Any impediment to
the deliberative process could reasonably be expected to adversely impact the
department’s ability to innovate, iterate and improve its policy and procedures,
which is against the public interest.
s47D – financial or property interests of the Commonwealth
•  would compromise the department’s future financial interest in seeking to
obtain the best value for money through a competitive tendering process for
contracts. Any impediment to the ability of the department to obtain best
value for money is against the public interest.
s47E(c) – Certain operations of an agency
In considering the public interest in disclosing the names and contact details of the
departmental officers to you, I have taken into consideration the following factors that
weigh against disclosure of the conditionally exempt information at this time:
•  the type of work undertaken by the relevant officers
•  the fact that the relevant officers was not  discharging powers or exercising
functions that impact on the rights and entitlements of members of the
community
•  the fact that the relevant officer’s details are not publicly available, including in
the Government Online Directory
Having regard to these factors, I consider that release of the information to you:
•  could reasonably be expected to prejudice the ability of the department to
effectively manage its staff. Any impediment to the ability of the department
to manage its staff to meet its operational requirements and statutory
obligations is contrary to the public interest.
s47E(d) – Certain operations of an agency
•  could reasonably be expected to prejudice the effectiveness of tender evaluation
procedures. Any impediment to the ability of the department to conduct robust,
accurate, fair and impartial evaluations is against the public interest.
•  could reasonably be expected to prejudice the department’s ability to obtain
confidential information as part of a tender process. Any impediment to the
ability of the department to obtain and consider relevant information as part of
a tender process is against the public interest.
•  could reasonably be expected to prejudice the competitive commercial activities
of the department, including its ability to enter into contracts that provide best
value for money.  Any impediment to the ability of the department to achieve
best value for money is against the public interest.
s47F – personal information

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•  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.
•  would not achieve any public purpose and, on balance, would harm the
individuals’ right to personal privacy.
•  would prejudice the department’s ability to meet its statutory obligations and
responsibilities in relation to the work health and safety of its employees. Any
impediment to the ability of the department to manage the health and safety
of its staff would be contrary to the objects of the Work Health and Safety Act
2011 (Cth), and therefore contrary to the public interest.
•  could reasonably be expected to adversely impact the ability of the
department to attract, recruit and retain staff. Any impediment to the ability of
the department to meet its operational requirements and meet its statutory
obligations is contrary to the public interest.
s47G – business information
•  would have an unreasonable adverse effect on businesses that seek contracts
with the department.
•  could reasonably be expected to prejudice the department’s ability to obtain
confidential information  from contractors and service providers. Any
impediment to the ability of the department to obtain information to advance
its programs would be contract to the public interest.
•  could reasonably be expected to prejudice an agency’s ability to obtain
contracted services in the future. Any impediment to the ability of the agency
to support its operational functions would be contrary to the public interest.
In forming my decision, I  confirm that 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.

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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. I have therefore redacted the conditionally exempt
information from the documents released to you.

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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