Reviews or evaluations of the impact of tobacco excise on smoking behaviour
Dear Department of the Health and Aged Care,
I am writing to request a copy of 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.
Please note that I am submitting an identical request to the Department of Treasury.
Yours faithfully,
Francis Markham.
Good morning Mr Markham,
Acknowledgement of receipt of Freedom of Information request
I refer to your request received by the Department of Health and Aged Care
(the department) for access to documents under the Freedom of Information
Act 1982 (FOI Act). You have requested 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.
The reference number for your request is FOI 25-0156 LD. Please ensure
that you quote this number in future correspondence with us concerning
this request.
Request for 14 day extension due to agency shutdown
Your request was received on 05 December 2024. The statutory timeframe for
processing your request is currently 30 calendar days, and the department
is required to provide you with an access decision on or before 04 January
2025.
Many areas of the department, including the FOI Section, will be/were
closed from 25 December 2024 to 1 January 2025 inclusive.
To ensure the department has sufficient time to process your request, we
are seeking your agreement to extend the period for completing your FOI
request by 14 days (under section 15AA of the FOI Act).
If you agree to this extension, the department would be required to
provide you with an access decision by 18 January 2025.
If you agree to this extension, please let us know by return email to
[1][Health request email] by close of business 10 December 2024. The department
will then notify the Office of the Australian Information Commissioner
(OAIC) of the agreed extension of time.
If you do not agree to the extension, the department may request the
extension from the OAIC under section 15AB of the FOI Act.
The department will process your request as soon as possible within any
extended timeframe.
Request to exclude irrelevant information from your request
To assist with processing your request, can you also please advise by COB
10 December 2024, if you agree that information regarding any public
service employee names below Senior Executive Service level and direct
telephone numbers of all staff will be excluded from the scope of your
request under s22(1)(a)(ii) of the FOI Act.
Other Information
The department may impose a charge for the work involved in providing
access to the documents. If this request attracts a charge, you will be
notified in writing.
Unless you advise otherwise any draft and duplicate documents will be
excluded from the scope of your request.
Please note that information released under the FOI Act may later be
published online on our disclosure log
[2]www.health.gov.au/resources/foi-disclosure-log, subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)
You can contact the FOI team via email at [3][email address] or by phone
on 02 6289 1666, should you have any questions.
Jordan(he/him)
FOI Administration Officer – Freedom of Information Section
Legal Advice and Legislation Branch
Legal Division | Corporate Operations Group
Australian Government Department of Health and Aged Care
T: 02 6289 1666 | E: [4][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges First Nations peoples
as the Traditional Owners of Country throughout Australia, and their
continuing connection to land, sea and community. We pay our respects to
them and their cultures, and to all Elders both past and present.
Dear Jordan,
Thank you for acknowledging receipt of my request.
I am happy to grant a 14 day extension to 18 January 2025.
Yours sincerely,
Francis Markham
Dear Mr Markham,
I refer to your request of 5 December 2024 to the Department of Health and
Aged Care (department), seeking access under the Freedom of Information
Act 1982 (Cth) (FOI Act) to the following documents:
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.
Notice of Third Party Consultation
Documents have been identified in the scope of your request which contain
information relating to third parties. It has been determined that it
would be appropriate to consult with the affected third parties under
sections 27 and 27A of the FOI Act prior to a decision on access to those
documents being made.
Section 15(6) of the FOI Act allows the timeframe for processing your
request to be extended by 30 days to facilitate this consultation.
Accordingly, the statutory due date for your request is now 17 February
2025.
The department will continue processing your request and provide you with
a decision on access as soon we are able to do so.
Relevant provisions
The FOI Act, including the provisions referred to in this email, can be
accessed from the Federal Register of Legislation website:
[1]www.legislation.gov.au/Series/C2004A02562.
If you require clarification of any of the matters discussed in this email
you should contact the department’s FOI Section by email at
[2][email address].
Kind Regards,
Case Officer – Freedom of Information Section
Legal Advice and Legislation
Legal Division | Corporate Operations Group
Australian Government, Department of Health and Aged Care
T: 02 6289 1666 | E: [3][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges the traditional owners
of country throughout Australia, and their continuing connection to land,
sea and community. We pay our respects to them and their cultures, and to
elders both past and present
From: FOI <[email address]>
Sent: Friday, 6 December 2024 11:05 AM
To: Francis Markham <[FOI #12480 email]>
Subject: Freedom of Information Request 25-0156 LD – Acknowledgement of
Receipt and Request for an Extension of Time [SEC=OFFICIAL]
Good morning Mr Markham,
Acknowledgement of receipt of Freedom of Information request
I refer to your request received by the Department of Health and Aged Care
(the department) for access to documents under the Freedom of Information
Act 1982 (FOI Act). You have requested 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.
The reference number for your request is FOI 25-0156 LD. Please ensure
that you quote this number in future correspondence with us concerning
this request.
Request for 14 day extension due to agency shutdown
Your request was received on 05 December 2024. The statutory timeframe for
processing your request is currently 30 calendar days, and the department
is required to provide you with an access decision on or before 04 January
2025.
Many areas of the department, including the FOI Section, will be/were
closed from 25 December 2024 to 1 January 2025 inclusive.
To ensure the department has sufficient time to process your request, we
are seeking your agreement to extend the period for completing your FOI
request by 14 days (under section 15AA of the FOI Act).
If you agree to this extension, the department would be required to
provide you with an access decision by 18 January 2025.
If you agree to this extension, please let us know by return email to
[4][Health request email] by close of business 10 December 2024. The department
will then notify the Office of the Australian Information Commissioner
(OAIC) of the agreed extension of time.
If you do not agree to the extension, the department may request the
extension from the OAIC under section 15AB of the FOI Act.
The department will process your request as soon as possible within any
extended timeframe.
Request to exclude irrelevant information from your request
To assist with processing your request, can you also please advise by COB
10 December 2024, if you agree that information regarding any public
service employee names below Senior Executive Service level and direct
telephone numbers of all staff will be excluded from the scope of your
request under s22(1)(a)(ii) of the FOI Act.
Other Information
The department may impose a charge for the work involved in providing
access to the documents. If this request attracts a charge, you will be
notified in writing.
Unless you advise otherwise any draft and duplicate documents will be
excluded from the scope of your request.
Please note that information released under the FOI Act may later be
published online on our disclosure log
[5]www.health.gov.au/resources/foi-disclosure-log, subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)
You can contact the FOI team via email at [6][email address] or by phone
on 02 6289 1666, should you have any questions.
Jordan(he/him)
FOI Administration Officer – Freedom of Information Section
Legal Advice and Legislation Branch
Legal Division | Corporate Operations Group
Australian Government Department of Health and Aged Care
T: 02 6289 1666 | E: [7][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges First Nations peoples
as the Traditional Owners of Country throughout Australia, and their
continuing connection to land, sea and community. We pay our respects to
them and their cultures, and to all Elders both past and present.
Dear Jordan,
I am happy to grant the requested extension to undertake third-party consultation.
Yours sincerely,
Francis Markham
Dear Mr Markham,
I refer to your Freedom of Information Request 25-0156 LD.
Thank you for your agreement to our request for an extension of 14 days on
6 December 2024.
Request for extension of time
The statutory due date for your request is currently 17 February 2025.
Section 15AA of the FOI Act permits the department to extend the statutory
processing timeframe, with your agreement, for a period of up to 30
calendar days.
Please be advised that the department is waiting to get advice from a
third party in relation to the potential release of their information
captured within the scope of your request. To ensure that the department
has undertaken all reasonable steps to assess and prepare all documents
relevant to your request, and for the decision maker to make a
well-balanced decision on access to documents identified, the department
is seeking your further agreement to an extension of 10 calendar days. If
you agree to this extension, the statutory due date will then be 27
February 2025.
It would assist if you could please advise by COB Tuesday 11 February 2025
or earlier if you agree to this extension of time. If we do not hear from
you by this date or if you do not agree to the extension, the department
may consider seeking an extension of time from the Office of the
Australian Information Commissioner (OAIC) under section 15AB of the FOI
Act.
We thank you for your ongoing patience and cooperation as we continue to
process your request.
Kind Regards,
Tritiya
Case Officer – Freedom of Information Section
Legal Advice and Legislation
Legal Division | Corporate Operations Group
Australian Government, Department of Health and Aged Care
T: 02 6289 1666 | E: [1][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges the traditional owners
of country throughout Australia, and their continuing connection to land,
sea and community. We pay our respects to them and their cultures, and to
elders both past and present
Dear Tritiya,
Thank you for following up on this request.
I agree to grant an extension as requested in this instance, but urge you to complete this consultation process in a timely manner.
Yours sincerely,
Francis Markham
Dear Mr Markham,
Thank you for your prompt reply and agreeing to our extension of time
request.
One of the third parties wanted to know your name. We are seeking your
permission if you agree to share your name with the third party.
Please note the department will not share your identity without your
permission.
I would appreciate your advice whether you agree or not by COB 11 February
2025.
Kind Regards,
Tritiya
Case Officer – Freedom of Information Section
Legal Advice and Legislation
Legal Division | Corporate Operations Group
Australian Government, Department of Health and Aged Care
T: 02 6289 1666 | E: [1][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges the traditional owners
of country throughout Australia, and their continuing connection to land,
sea and community. We pay our respects to them and their cultures, and to
elders both past and present
Dear Tritiya,
Yes, I am happy for my identity to be disclosed and happy to discuss the FOI request directly with those third parties, please pass on my name and email address.
Yours sincerely,
Francis Markham
Dear Mr Markham,
I refer to your FOI request 25-0156 LD.
Please see attached a notice of decision.
Should you have any questions, please contact FOI team on the below
details.
Kind Regards,
Tritiya
Case Officer – Freedom of Information Section
Legal Advice and Legislation
Legal Division | Corporate Operations Group
Australian Government, Department of Health and Aged Care
T: 02 6289 1666 | E: [1][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges the traditional owners
of country throughout Australia, and their continuing connection to land,
sea and community. We pay our respects to them and their cultures, and to
elders both past and present
Dear Department of Health,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of the decision dated 27 February 2025 in relation to my FOI request (reference FOI 25-0156 LD).
My original request 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.”
Grounds for Review
I am seeking this review on the following grounds:
1. Misapplication of Section 47G exemption to entire documents
The decision maker has applied the section 47G business information exemption to withhold eight documents in their entirety. This approach does not align with the principles of the FOI Act, particularly section 22, which provides for access to edited copies with exempt material deleted.
Section 22 of the FOI Act states that if:
o access to a document is refused because it contains exempt information; and
o it is reasonably practicable to prepare a copy of the document modified by deletions of exempt material;
o the agency must offer the applicant access to such an edited copy.
The decision letter fails to demonstrate that the decision maker considered whether it was reasonably practicable to provide edited copies of the eight documents with genuinely exempt material redacted. Given the diverse nature and substantial length of the documents identified (including research papers, reports, presentations ranging from 2 to 229 pages), it seems highly unlikely that each document would contain business information so interwoven throughout that no portions could be released.
2. Inadequate identification of specific business information
The decision letter provides only general statements about business information without identifying:
o Which specific third parties' business information is contained in each document
o The nature of the business information in question
o Why release of specific portions would unreasonably affect those business interests
o
Without this level of specificity, there is no way for me to understand or meaningfully contest the basis for withholding the information.
3. Failure to demonstrate "unreasonable adverse effect"
The decision letter does not provide sufficient evidence that disclosure would unreasonably affect third parties in their lawful business affairs. Studies on tobacco excise impacts commissioned by government would typically contain statistical data, analysis of public health outcomes, and policy recommendations—much of which would be factual information that could be separated from any genuinely sensitive commercial information.
4. Insufficient public interest assessment
While the decision letter lists general factors for and against disclosure, it does not conduct a detailed balancing test specific to each document. The significant public interest in understanding tobacco control policy impacts does not appear to have been given appropriate weight.
Given that tobacco excise is a major public health intervention designed to reduce smoking rates in Australia, there is substantial public interest in understanding its effectiveness as demonstrated by research commissioned or held by the Department.
Request for Review Outcome
I request that the review officer:
1. Re-examine each of the eight documents to identify specific information that genuinely meets the section 47G exemption criteria.
2. Consider whether it is reasonably practicable to provide edited copies of documents with only the genuinely exempt material redacted, as required by section 22 of the FOI Act.
3. Provide a more detailed statement of reasons that specifically identifies:
o The nature of the business information being withheld in each document
o The specific harm that would result from disclosure of particular information
o Why that harm would be both unreasonable and contrary to the public interest
4. Apply a more nuanced public interest test that recognizes the significant public interest in understanding the effectiveness of tobacco control policies.
Thank you for your consideration of this review request. Please contact me if you require any further information.
Yours sincerely,
Francis Markham
Dear Mr Markham,
FREEDOM OF INFORMATION INTERNAL REVIEW REQUEST – NOTIFICATION OF RECEIPT
I am writing to notify you that the Department of Health and Aged Care
(department) has received your request for an Internal Review of a
decision on access made by the department on 27 February 2025 under the
Freedom of Information Act 1982 (Cath) (FOI Act).
The department has 30 calendar days after the date your request was
received to notify you of its decision on the internal review.
You can contact the FOI Section via email at [1][email address], should
you have any questions.
Kind Regards,
FOI Administration Officer – Freedom of Information Section
Legal Advice and Legislation Branch
Legal Division | Corporate Operations Group
Australian Government Department of Health and Aged Care
T: 02 6289 1666 | E: [2][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges First Nations peoples
as the Traditional Owners of Country throughout Australia, and their
continuing connection to land, sea and community. We pay our respects to
them and their cultures, and to all Elders both past and present.
Good afternoon,
We refer to your request for internal review of FOI 25-0156 LD received on
28 February 2025.
Please find attached a decision on access.
If you have any queries in relation to this decision, please contact the
FOI Section on the details below.
Kind regards,
Daniel
Senior Case Officer – Freedom of Information Section
Legal Advice and Legislation
Legal Division | Corporate Operations Group
Australian Government, Department of Health and Aged Care
T: 02 6289 1666 | E: [1][email address]
PO Box 9848, Canberra ACT 2601, Australia
The Department of Health and Aged Care acknowledges the traditional owners
of country throughout Australia, and their continuing connection to land,
sea and community. We pay our respects to them and their cultures, and to
elders both past and present
Francis Markham left an annotation ()
On 1 April, 2025, I applied to the OAIC for a review of the internal review decision (submission receipt number WEB-MR-25-01228). My review request reads as follows:
_______________________________________________________________
Office of the Australian Information Commissioner
GPO Box 5288
Sydney NSW 2001
FREEDOM OF INFORMATION ACCESS REFUSAL DECISION FOR REVIEW
Dear Information Commissioner
RE: Application for Review of FOI Decision - Department of Health and Aged Care (Reference: FOI-0156 IR)
I am writing to apply for a review of an access refusal decision made by the Department of Health and Aged Care (the Department) under the Freedom of Information Act 1982 (Cth) (FOI Act), reference: FOI-0156 IR.
Background
On 5 December 2024, I submitted an FOI request to the Department seeking:
"A copy of 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.). Include any that have been undertaken, commissioned or received by the Department of the Health and Aged Care since 2018."
On 27 February 2025, the Department issued its initial decision to refuse access to eight documents in full under section 47G (business information) of the FOI Act.
On 28 February 2025, I applied for an internal review, submitting that:
1. The Department did not adequately identify specific information that genuinely meets the section 47G exemption criteria
2. The Department did not consider whether edited copies could be provided with only genuinely exempt material redacted
3. The Department did not provide a detailed statement of reasons identifying the nature of the business information, specific harm from disclosure, and why that harm would be both unreasonable and contrary to the public interest
4. The Department did not apply a nuanced public interest test that recognizes the significant public interest in understanding tobacco control policy effectiveness
On 31 March 2025, First Assistant Secretary Trish Clancy issued an internal review decision that varied the original decision by refusing access to all eight documents under section 47(1)(b) instead of section 47G. This decision maintained the refusal of access in full to all eight documents. Notably, Ms. Clancy did not provide any explanation as to why she considered that section 47G (which was the basis of the original decision) did not apply.
All correspondence related to this FOI decision and Internal Review—including my initial request, the original s26 decision and the internal review s26 decision—can be found at https://www.righttoknow.org.au/request/r...
Offer to Narrow the Scope of Request
Based on the additional information provided in the internal review decision, specifically a document description that was not previously provided, I am willing to withdraw my request for Document #8 (labelled d “Tobacco in Australia - Industry Overview” dated 01/10/2019, previously described only as a “Market Report”). The internal review decision indicates this document is a commercially available Euromonitor report that can be purchased directly from Euromonitor.
However, I maintain my request for access to the remaining seven documents. These appear to be government-commissioned or government-produced analyses of tobacco control policy effectiveness and/or prospective policy impact analyses.
Grounds for Review
I am seeking review of this decision on the following grounds:
1. Improper Application of Section 47(1)(b)
The Department has failed to demonstrate that the documents contain information "having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed" as required by section 47(1)(b).
The reasons provided in the internal review decision merely recite the factors in the FOI Guidelines which must be satisfied for a section 47(1)(b) exemption to apply, followed by assertions that these factors are satisfied, without adequate reasoning being provided in the decision document. This approach amounts to a formulaic recitation of exemption criteria rather than a proper analysis.
Further, there is no evidence that this decision was made individually for each document (with the exception of Document #8). While the Department claims the documents contain "commercially valuable information," it provides only generic assertions without document-specific analysis. Each document appears to be of a different nature (research papers, working documents, presentations) and of quite different lengths, and would likely contain different types of information with varying commercial value.
In my view, the Department's blanket assertion that all eight documents in their entirety contain commercially valuable information is not credible because the Department has failed to identify any specific commercial value, or how it could be reasonably expected that disclosure would cause the value of that information to be destroyed or diminished.
2. Failure to Consider Section 22 - Partial Release
Accepting for the moment that a section 47(1)(b) exemption may apply to parts of all of the requested documents, the internal review fails to properly consider section 22 of the FOI Act, which requires the release of edited copies of documents where it is reasonably practicable to remove exempt material.
The Department has not provided any explanation for why the documents could not be partially released with genuinely commercially valuable information redacted. For example, in the internal review decision, the Department notes that “some of the information contained within the documents relates to modelling and simulation activities of third parties” which, if disclosed, might “destroy or diminish the third parties commercially valuable information.” This acknowledgment that only “some” of the information is potentially valuable suggests that there is no adequate reason for exempting the entire documents in full. It further suggests that partial release with appropriate redactions would be both possible and appropriate under section 22 of the FOI Act.
This failure to consider partial release is particularly concerning given:
a. The documents vary significantly in length (from 2 pages to 229 pages)
b. The documents appear to be of different types and would likely contain non-commercially valuable material that could be separated from any commercially valuable information
c. The titles of the documents suggest they contain information about government policy evaluation and/or prospective policy impact analysis that would normally be in the public domain
3. Unexplained Change of Exemption Basis
The internal review decision changes the exemption basis from section 47G (conditional exemption for business information) to section 47(1)(b) (absolute exemption for commercially valuable information). No reasons for this change in exemption basis is provided. This shift in exemption basis without adequate explanation undermines the internal review process and suggests the Department has retrospectively sought a more absolute ground for refusal.
Conclusion
The Department's handling of my request has failed to uphold the objects of the FOI Act, which include promoting Australia's representative democracy by increasing public participation in government processes and increasing scrutiny of government activities. The blanket refusal of access to all eight documents contradicts the principle that government information is a national resource to be managed for public purposes.
For the reasons given above, I request that the Information Commissioner review the Department's decision and the documents in question.
I am available to provide any further information that may assist with this review. Please direct all correspondence relating to this review by email to francis.markham@anu.edu.au
Thank you for your consideration of this matter.
Yours sincerely,
Francis Markham
Fellow