FOI reference: FOI-25-0036 LD IR
Ms Julie Keys
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Keys
Decision on your Freedom of Information Request for Internal Review
I refer to your request of 7 November 2024, to the Department of Health and Aged
Care (the department), requesting an internal review of the department’s decision on
access dated 30 October 2024 and sent to you on 1 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 2 October 2024, you requested access to:
A copy of guidelines/information sheets/correspondence containing a list of evidence-
based drugs for treating the neurological condition Myalgic Encephalomyelitis/
Chronic Fatigue Syndrome (ME/CFS).
Original FOI decision
On 1 November 2024 a decision was sent to you to refuse access to your request in
accordance with section 24A of the FOI Act as the documents did not exist in the
possession of the department.
Your submissions
In making your request for the department to review its original decision on access,
you have provided the following submissions:
I note that despite extensive searches the Department of Health and Aged Care has
been unable to locate any internal correspondence relating to evidence based
treatments for ME/CFS.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
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Whilst I appreciate the effort made to date, I find it extraordinary that the
Department has not found any correspondence about a disease that pre Covid was
found to affect more than 250 000 Australians (25% of them bed or housebound).
Internal Review Decision
Under section 54C of the FOI Act, I have decided to affirm the original decision.
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 original FOI request and your subsequent internal review
submission, as outlined above
• the content of the documents sought, and
• advice from departmental officers with responsibility for matters relating to
the documents sought.
The FOI Guidelines, at paragraph 3.89, note that “[a]gencies and ministers should
undertake a reasonable search on a flexible and common sense interpretation of the
terms of the request”.
The department consulted 5 internal business areas in response to your internal review
request; no documents in scope of your request were identified. Further, the
Prescriptions Medicines Authorisations Branch has advised that no documents could
be located as there are no prescription medicines approved to date for the indications
ME/CFS.
I note that your original request was for a “list” of evidence-based drugs for treating
ME/CFS. Although your original request refers to “guidelines/information sheets/
correspondence” and your internal review submission refers to “correspondence”,
I am satisfied that a reasonable interpretation of your original request is that you seek
access to a ‘list’. Although such a list, if it exists, may be contained in correspondence
or other types of documents, I am satisfied that your request is for a ‘list’, not for any
documents “relating to” or “about” drugs for treating ME/CFS.
The right to request access to a document in accordance with the FOI Act relates to
documents in the possession of the department (section 4 (definition of ‘document of
an agency’) refers).
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Subsection 24A(1) of the FOI Act provides that:
An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document, and
(b) the agency or Minister is satisfied that the document:
(i)
is in the agency's or Minister's possession but cannot be found, or
(ii)
does not exist.
The relevant business areas within the department have conducted searches of the
department’s information holdings, including Trim, the Parliamentary Document
Management System (PDMS), computer drives, physical files, and also for documents
held in the Protected Network. No documents matching the description in your
request were identified as being in the possession of the department.
Based on these searches, I am satisfied that all reasonable steps have been taken to find
the documents and the documents do not exist in the possession of the department.
As such, I am refusing your request in accordance with section 24A of the FOI Act.
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 A.
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
Chris Johnston
General Counsel
Advice and Legislation Branch
Legal Division
December 2024
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ATTACHMENT A.
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.
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
