FOI reference: FOI-0156 IR
Francis Markham
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Francis Markham
Decision on your Freedom of Information Request for Internal Review
I refer to your request of 28 February 2025, to the Department of Health and Aged Care
(the department), requesting an internal review of the department’s decision on access
dated 27 February 2025 (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 5 December 2024, you requested access to:
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.
Original FOI decision
On 27 February 2025, a decision was made to exempt eight documents under section
47G (business information) of the FOI Act.
Your submissions
In making internal review request you provided the following submissions:
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
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
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3. Provide a more detailed statement of reasons that specifically identifies:
a.
The nature of the business information being withheld in each document
b.
The specific harm that would result from disclosure of particular information
c.
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
Your submissions
In making your request for the department to review its original decision on access,
you have provided the following submissions:
Section 47G
In relation to the conditional exemption under section 47G of the FOI Act applied to
documents 1-8, you contended that the decision maker did not adequately identify
the information in the documents that meet the threshold of confidential or similar
business information. In addition, you contended that the department did not
demonstrate the unreasonable adverse effect of disclosure on a third parties business
affairs.
Public Interest
You also contend that the decision letter does not conduct a detailed balancing test
specific to each document, and the public interest does not appear to have been given
the appropriate weight.
Public Access to Document 8 and updated schedule of documents
Document 8 is a report prepared by Euromonitor. You can purchase Euromonitor
reports at the following website: https://www.euromonitor.com/store. These reports
are proprietary in nature, with strict distribution clauses. Purchasing the report is an
alternative method available to you should you wish to seek an alternative access to
this document.
The department has also updated the schedule of documents to provide additional
descriptions to the documents in scope of your request.
Internal Review Decision
In making a fresh decision as part of this internal review, 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.
Under section 54C of the FOI Act, I have decided to vary the original decision by
granting greater access without providing full access. My decision is to:
• vary the original decision for documents 1- 8 where the department decided to
refuse access to these documents under section 47G. However, as the
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documents contain commercially valuable information, I have decided to refuse
access to these documents under section 47(1)(b).
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
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.
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
Trish Clancy
First Assistant Secretary
Population Health Division
31 March 2025
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ATTACHMENT B.
REASONS FOR INTERNAL REVIEW DECISION
FOI-0156 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 the relevant documents are set out below.
3. 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
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• 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
• 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 14 January 2025, in accordance with the obligations under section
27 of the FOI Act, the department consulted with affected third parties as part of the
original access decision. In making my decision on access to the relevant documents, I
have taken into consideration the exemption submissions made during that
consultation process.
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The documents marked ‘s47’ in the schedule’ is either proprietary in nature, or is
unpublished information provided to the department on a confidential basis. For
example, some of the information contained within the documents relates to modelling
and simulation activities of third parties. I am satisfied that should this information be
disclosed, this would destroy or diminish the third parties commercially valuable
information.
For the reasons outlined above, I have decided that the documents marked ‘s47’ in the
schedule or parts of the documents marked ‘s47’ are exempt from disclosure under
section 47 of the FOI Act.
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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
