Request for OAIC Review, Department of Health FOI request 25-0019 LD
Dear Office of the Australian Information Commissioner,
I am seeking an Information Commissioner review of the Department of Health and Aged Care's handling, deemed refusal and decision to my request FOI request 25-0019 LD
You may view the history and details of my request at https://www.righttoknow.org.au/request/a...
Firstly, I have not been provided with all the documents the department has claimed to release under their internal review, and despite repeated follow up requests to the department, they have not provided any further response.
Specifically, in their internal review decision, dated 9 January 2025, (available here https://www.righttoknow.org.au/request/a...) some of the pages they state are meant to be included in the released documents have not been included in the PDF
According to Attachment A - Schedule of Documents - the total pages released should be 5 + 260 + 6, for a total of 271 pages, but the PDF they provided has a total of 164 pages.
Document seems to be where the pages are missing -
Pages 35 - 46, document 2, appear missing
Pages 55 - 142, document 2, appear missing
They have not responded to my request for a corrected PDF to be released.
Further, I ask you to review their decision making.
While it is difficult to make a full assessment of the documents, considering they are incomplete, I reserve my right to update this request for review if they subsequently release more information.
But based on what they have released, I request you review the following exemptions used
Exemption of “Attachment A – Benefit to Australian Economy”, FOI 25-0019 LD IR - Document 2, Pages 16,17 and 18 of 260.
I request the Information Commissioner review the Department’s exemption of this section of the document under s47G.
The Department’s reasoning for their use of this exemption, contained on pages 18 and 19 of 25-0019 LD IR Attachment B talks to two reasons for this exemption - the first relates to the business information of unsuccessful tenderers, the second relates to the pricing and costs of services to the department, as well as the overall business affairs of a third party.
The department notes
“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 business outweighs the public interest in the disclosure of this information.”
I contend that the Benefit assessment - the result of a requirement on officials to consider the economic benefit of a procurement to the Australian economy in the context of determining value for money for higher value procurements, could not be exempt under s47G as it should not relate to the interests of a third party, but rather be an assessment of the benefits to the australian economy.
I, again, contend that releasing this information would strengthen the departments’ future procurement processes through providing transparency around the value for money assessment and the benefits to the australian economy. and the Department has provided no evidence specifically why this section in particular would impact their ability to obtain best value for money in future procurement processes - and releasing their assessment, which I note is a key claim made by the Department as to why there is no public interest here “ as noted above that the procurement was undertaken in a lawful and expected process” - how convenient that they make this contention as the reasoning against releasing information to the public that would confirm or otherwise their assertion.
Exemption of savings and pricing information under s47D
I also ask the OAIC to review the departments use of s47D in exempting documents from release.
The department states that releasing this information would compromise the department’s future financial interest in seeking to obtain the best value for money through a competitive tendering process for contracts. Any impediment to the ability of the department to obtain best value for money is against the public interest.
I contend that transparency around a successful tender cannot hinder the department in achieving future value for money concerns, and indeed would support it.
Weighing of factors against disclosure
The department argues that disclosure of conditionally exempt information (noting I am also disputing it is conditionally exempt), is not in the public interest, and argues that disclosure of this information would not inform debate on a matter of public importance.
I ask the OAIC to overturn this contention, and again make the argument that disclosure of conditionally exempt information contained in my request would inform debate on matters of public importance, more broadly than just promoting effective oversight of public expenditure.
For example, as outlined in this public news article from the Saturday Paper, October 2024, Exclusive: FOI docs reveal courting of health officials - there are potential issues broader than effective oversight of public expenditure, such as corruption and mal-administration. The article is available at https://www.thesaturdaypaper.com.au/news...
While these issues are related to oversight of public expenditure, I ask the OAIC to find that there are at least three out of the four factors in favour of disclosure of conditionally exempt information, rather than just two out of four as contended by the Department.
On balance, i contend, the public interest in disclosure outweighs any counter-concerns raised by the department.
I also note that the referenced OAIC review decision, referenced by the Department in it’s arguments relating to why it does not consider disclosure would inform a matter of public debate - Janet Rice and Department of Health and Aged Care (Freedom of information) [2024] AICmr 41 - does not appear to support their argument and rather appears to indicate that the OAIC review would have agreed that release of this conditionally exempt information would indeed inform public debate.
Yours faithfully,
Health Anon
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Our reference: MR25/00230
Agency reference: 25-0019 LD
Applicant: Health Anon
Respondent: Department of Health and Aged Care
By email: [1][FOI #12811 email]
Your Information Commissioner review application
Dear Health Anon,
On 4 February 2025, you applied for IC review about a Freedom of
Information (FOI) decision made by the Respondent referenced at the top of
this email. This was because you indicated you were unhappy with the FOI
decision.
Why we are writing to you:
I am writing to you to help you make a valid IC review application.
At this time, the Information Commissioner does not yet have sufficient
evidence to be satisfied that you were the FOI applicant and, therefore,
that you had the right to apply for IC review. This is because the email
you used to request for an IC review
([2][FOI #12811 email]) differs from email used
to make an FOI request to the Agency
(foi+[3][email address])
Section 54L(3) of the FOI Act provides that an IC review application may
be made by, or on behalf of, the person who made the request to which the
decision relates.
The [4]Direction as to certain procedures to be followed by applicants in
Information Commissioner reviews states:
‘…The IC may require information about the applicant’s identity to
establish that they are the person who made the original FOI request or
evidence that a third party is authorised to seek review of the decision
by that person’ [2.12]
Action required by you before 12 February 2025:
Please provide any evidence that you operate both Right to Know email
addresses.
Participation in IC review process:
The Direction further states:
o Applicants must respond to requests for information from the OAIC
within the time provided unless there are exceptional circumstances
warranting a longer period to respond. If more time is needed, a
request for an extension of time must be made to the OAIC at the
earliest opportunity within the period provided for response, and no
later than 2 days before that period is due to expire. Requests for
more time must explain the exceptional circumstances that necessitate
additional time and propose a new date for response. Approval of an
extension request is at the discretion of the OAIC [2.22]
o The OAIC expects that applicants and agencies will engage with the IC
review process, with respect and courtesy [2.23]
As such, if you do not provide the information we need for the IC review
application by 13 February 2025, we intend to close your IC review
application.
Assistance
If you are unable to respond by 13 February 2025, you must request more
time at the earliest opportunity and no later than 11 February 2025.
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respondent at any time.
If you require assistance regarding this email, please contact us at
[5][email address].
Kind regards,
Sarveshcika Yuvaraj
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Dear OAIC - FOI DR,
I have left an annotation on my original Right To Know FOI request to Department of Health confirming I am indeed the original applicant
https://www.righttoknow.org.au/request/a...
Please advise if this is not sufficient.
Yours sincerely,
Health Anon
Our reference: MR25/00230
Agency reference: 25-0019 LD
FOI Contact Officer
Department of Health and Aged Care
By email: [1][email address]
Health Anon
By email: [2][FOI #12811 email]
Information Commissioner review - Notice of commencement
Dear parties,
Please find attached notice of commencement for the above referenced
Information Commissioner review (IC review).
The OAIC requires the agency to engage with applicants to resolve or
narrow the issues in dispute. Applicants are encouraged to actively
communicate with the agency to facilitate this engagement.
Please note, Annexure A and B of the notice provide further information
about the obligations of parties during the IC review process.
Kind regards,
[3][IMG] Ishraq Quashem
Casework Support Officer
FOI Case Management Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [4][email address]
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Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
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[5]Subscribe to Information Matters
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Dear Health Anon,
I refer to your application for Information Commissioner review (IC
review) of the Department of Health and Aged Care’s (the department)
decision dated 8 November 2024 for the FOI request 25-0019 LD IR.
On 10 February 2025, the Office of the Australian Information Commissioner
(OAIC) notified the department of your request for review – please see
attached.
For the purposes of this IC review, I am the case officer assisting with
the department’s response to OAIC’s request for submissions and I will not
be the decision maker.
Background
On 9 January 2025, the department made a decision on internal review to
vary its decision made on 8 November 2024 to:
o Grant access to one document in full; and
o Grant access to two documents in part, subject to deletion of exempt
material.
In your application for IC review of the department’s internal review
decision, the reasons provided for why you sought further review are set
out in the attached email. You have indicated in the attached email that
the department has not provided all the relevant documents and have made
contentions regarding the exemptions that were applied.
Requirements for parties to engage
As part of the IC review process, the OAIC has directed that the
department engage with you through a phone call or video conference by 24
March 2025 to see if the matter can be resolved or to narrow the issue in
dispute. You are also welcome to let the department know if you would
prefer to engage another way, such as in writing.
Could you please let us know what your preference is to engage with the
department by 27 February 2025.
If you fail to participate in the engagement process (without reasonable
excuse), the OAIC may decide to not continue the IC review. This will be
on the ground you have failed to cooperate in progressing the IC review
without reasonable excuse. The OAIC will warn you if we are considering
this possibility and give you the opportunity to respond.
The OAIC expects that you will engage in the IC review process with
respect and courtesy – please see paragraph 2.23 of the [1]Direction as to
certain procedures to be followed by applicants in Information
Commissioner reviews.
For more information regarding the requirements to engage, please see
[2]here.
Please let me know if there is any other topic you wish to discuss, or if
there a particular document which you are concerned about and wish to
discuss specifically.
I look forward to discussing this matter with you.
Kind regards,
FOI Case Officer – Freedom of Information Section
Advice and Legislation Branch
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 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.
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3. mailto:[email address]
Dear FOI Case Officer, Department of Health and Aged Care,
My preference is to engage with the Department in writing via the RightToKnow platform.
Thank you.
Yours sincerely,
Health Anon