FOI 25 0162 LD Decision on Access.pdf

FOI reference: 25-0162 LD
Ms Julie Keys
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Ms Keys
Decision on your Freedom of Information Request
I refer to your information access request of 9 December 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:
correspondence/guidelines etc that detail which drugs are recommended to be prescribed
for a person with Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) in
Australia.
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 17 December 2024, the department contacted you by email, acknowledging your
request. On the same day, the department contacted you to seek a 7-calendar day
extension of time under section 15AA of the FOI Act to allow it to process your FOI
request.
On 19 December 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 15 January 2025.
On 26 December 2024, you contacted the department to follow up on the progress of
the FOI request.

On 10 January 2025, the department informed you that it was consulting a third
party whose information was contained in documents identified pursuant to sections
27 and 27A of the FOI Act. As a result, the statutory timeframe for your request was
extended by 30 calendar days to 14 February 2025.

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

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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 FOI Guidelines.
Decision on access
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.
I have decided to grant access to three documents in part, subject to the deletion of
irrelevant and exempt 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 out in ATTACHMENT B.
Please note that the department of Health and Aged Care does not make any clinical
recommendations for the treatment of  Myalgic encephalomyelitis/chronic fatigue
syndrome (ME/CFS) as this is a matter for registered clinicians and organisations that
develop clinical guidelines.
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.
The Privacy Act 1988 (Cth) (Privacy Act), 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 review rights at ATTACHMENT C.

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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

Gabriela Luksza
A/g Assistant Secretary
Hearing Services & Chronic Conditions Branch
12 February 2025

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ATTACHMENT B.
REASONS FOR DECISION
FOI 25-0162 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 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 irrelevant information
(subparagraph 22(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.
The documents contain the names of below Senior Executive Service level staff and
contact details  of  departmental  employees.  When your FOI access request was
acknowledged, 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.
In addition, document one contains references to grant applications made by third-
party organisation  for funding from other Commonwealth agencies and overseas
organisations. I have interpreted the scope of your request as only requesting
correspondence/guidelines concerning ME/CFS recommendations, and as such have
treated  references to grant  applications where no decision has been made as

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information  irrelevant to your  requested  scope.  As such  this information has been
deleted under section 22 of the FOI Act as outlined above.
4.  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
•  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 parts of the documents marked ‘s47F’ includes  personal
information, namely  names, exact work location and contact details  not publicly
available of the third-party organisation. In addition, I have redacted the signature
block of a below Senior Executive Staff member within document 3.
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 conditional 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 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 or minister’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
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:

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•  the individuals whose personal information is contained in the documents are
identifiable
•  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 would not expect the information to be placed in the public
domain, particularly their work room locations and detriment may be caused
to the individuals to whom the information relates, and
•  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.
5.  Disclosure is not in the public interest
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.
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
Subsection 11B(3) 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

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•  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.
Factors weighing against disclosure
Section 47F
•  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,
name of an employee within an organisation, contact details and signature
block  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, which would be contrary to the objects
of the Privacy Act 1988 and therefore against 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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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