FOI reference: FOI 25-0156 LD
Mr Francis Markham
Email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Markham
Decision on your Freedom of Information Request
I refer to your information access request of 5 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:
any evaluations, reviews or assessments of the impact of tobacco excise on smoking
behaviour (e.g. consumption, prevalence, product switching to e-cigarettes, product
switching to the black market, etc.).
Please include any that have been undertaken, commissioned or received by the
Department of the Health and Aged Care since 2018.
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 6 December 2024, the department wrote to you under section 15AA of the FOI Act
seeking a 14-day extension of time to allow it to process your FOI request.
On the same day, you responded to the department agreeing to the extension of time
request. As a result, the statutory date for your FOI access request was to
18 January 2025.
On 14 January 2025, the department informed you that it was consulting with third
parties whose information was contained in documents identified as relevant to your
request under sections 27 and 27A of the FOI Act. As a result, the statutory timeframe
for your request was extended by 30 days to 17 February 2025.
On 7 February 2025, the department wrote to you under section 15AA of the FOI Act
seeking a 10-day extension of time to allow it to process your FOI request.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
link to page 4 link to page 5 link to page 5
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On the same day, 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
27 February 2025.
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 8 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 refuse access to all 8 documents as they contain fully exempt
material.
A schedule setting out the documents relevant to your request, with my decision in
relation to those documents, is a
t 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, is available on the
Federal Register of Legislation website:
www.legislation.gov.au/Series/C2004A02562.
Your review rights
I have set out your review rights a
t ATTACHMENT C.
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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
Karlie Brown
Assistant Secretary
Tobacco & E-cigarette Control Branch
27 February 2025
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ATTACHMENT A.
SCHEDULE OF DOCUMENTS
FOI REQUEST 25-0156 LD
Document Pages
Date
Description
Decision on Relevant
access
provisions
of FOI Act
1
4
02/05/2023
Research paper
Exempt in
s47G
full
2
3
10/05/2023
Memorandum
Exempt in
s47G
full
3
2
04/05/2023
Working document
Exempt in
s47G
full
4
129 01/07/2022
Research report
Exempt in
s47G
full
5
3
02/12/2019
Working document
Exempt in
s47G
full
6
23 30/09/2021
Research paper
Exempt in
s47G
full
7
229 15/09/2022
Presentation
Exempt in
s47G
full
8
47 01/10/2019
Market report
Exempt in
s47G
full
link to page 1
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ATTACHMENT B.
REASONS FOR DECISION
FOI 25-0156 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 exemption identified in the
schedule of documents apply to the relevant documents are set out below.
3. Section 47G – Business information
Section 47G of the FOI Act provides that a document is conditionally exempt if its
disclosure would disclose information concerning a person in respect of his or her
business or professional affairs or concerning the business, commercial or financial
affairs of an organisation or undertaking, in a case in which the disclosure of the
information:
(a) would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or
that organisation or undertaking in respect of its lawful business,
commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information
to the Commonwealth or an agency for the purpose of the administration of
a law of the Commonwealth or of a Territory or the administration of
matters administered by an agency.
Business information
Paragraph 6.177 of the FOI Guidelines states that the conditionally exempt information
must have some relevance to a person in respect of his or her business or professional
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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.
The documents marked ‘s47G’ in the schedule contain business affairs information
that is relevant to the business, commercial or financial affairs of organisations or
undertaking. This information is relevant to the profitability and financial viability of
organisations or undertaking and does not relate to their private or internal affairs.
As such, I am satisfied that this information is business information.
Unreasonable adverse effect of disclosure
Paragraph 6.184 of the FOI Guidelines states that the presence of ‘unreasonably’ in
subsection 47G(1) implies a need to balance public and private interests. The public
interest, or some aspect of it, will be one of the factors in determining whether the
adverse effect of disclosure on a person in respect of his or her business affairs is
unreasonable. I must therefore balance the public and private interest factors to decide
whether disclosure is unreasonable for the purposes of paragraph 47G(1)(a); but this
does not amount to the public interest test of subsection 11A(5) which follows later in
the decision process.
Paragraph 6.185 of the FOI Guidelines goes on to state that the test of reasonableness
applies not to the claim of harm but to the objective assessment of the expected adverse
effect. I must balance the public interest against a private interest of the affected third
parties, preserving the profitability of a business.
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 organisations or
undertakings.
I have also had regard to the public and private interest factors, and I am satisfied that
the preservation of the profitability and ongoing viability of the affected third-party
businesses outweighs the public interest in the disclosure of this information.
Prejudice future supply of information
Paragraphs 6.197-6.199 of the FOI Guidelines state:
6.197 This limb of the conditional exemption comprises two parts:
• a reasonable expectation of a reduction in the quantity or quality of business
affairs information to the government
• the reduction will prejudice the operations of the agency
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6.198 There must be a reasonable likelihood that disclosure would result in a
reduction in both the quantity and quality of business information flowing to the
government. In some cases, disclosing the identity of the person providing the
business information may be sufficient to prejudice the future supply of information.
Disclosure of the person’s identity may also be conditionally exempt under s 47F
(personal privacy). In these cases, consideration should be given to whether the
information may be disclosed without also disclosing the identity of the person
supplying the information.
6.199 Where the business information in question can be obtained compulsorily, or
is required for some benefit or grant, no claim of prejudice can be made. No prejudice
will occur if the information in issue is routine or administrative (that is, generated as
a matter of practice).
You have sought access to documents about the impact of tobacco excise on smoking
behaviour that contain business information.
I am satisfied that release of the business information marked as ‘s47G’ would have a
substantial adverse effect on the department’s ability to receive full and candid
information from third parties in the future if a precedent of release of business
information were established. Any reluctance on the part of organisations to provide
detailed and accurate information to the department in relation to impact of tobacco
excise on smoking behaviour would reasonably be expected to result in a decrease in
the quality and quantity of information provided to the department.
For these reasons, I am satisfied that a precedent of disclosure of the business
information could reasonably be expected to prejudice the future supply of
information to the department.
In making my decision, I have consulted with the affected third parties regarding the
relevant business affairs information, and I have considered any concerns.
For the reasons outlined above, I have decided that the documents marked ‘s47G’ in
the schedule 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.
4. 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.
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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
• 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 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
I consider that the following public interest factors weigh against disclosure of the
information conditionally exempt under section 47G at this time, on the basis that
disclosure:
• could reasonably be expected to prejudice the department’s ability to obtain
confidential information from contractors and/or public health experts.
Any impediment to the ability of the department to obtain information
which enables it to advance its public health policy and programs for the
benefit of the Australian public would be contrary to the public interest.
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• could reasonably be expected to expose the business or commercial affairs of
Australian businesses to the world at large and adversely affect those
organisations’ current or future business and/or commercial opportunities.
Any adverse impact on the contracted parties or suppliers used by the
department could reasonably be expected to reduce the pool of information and
service available to the department, which would have adverse impacts on the
ability of the department to source quality and cost-effective services. Any
impediment to the ability of the department to conduct its lawful affairs with
quality and cost-effective business services would be contrary to the public
interest.
• could adversely the future commercial and/or business activities of number of
commercial entities. Any impediment to the ability of these businesses to freely
conduct their lawful business affairs would be contrary to the public interest.
• would also have the effect of linking the businesses with future public health
policy and programs. I consider that if this information were released without
the express consent of the concerned commercial entities, it could dissuade
them and other parties from entering into future business and/or contractual
arrangements with the department. Any impediment to the ability of the depart
to source services to support its work on public health policy and programs
would be 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.
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 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
Document Outline
