
Department reference: FOI 25-0019 LD IC
OAIC reference: MR25/00230
Ishraq Quashem
Casework Support Of icer
FOI Case Management Branch
Of ice of the Australian Information Commissioner
Via email: xxxxx@xxxx.xxx.xx
Dear Ishraq,
RESPONSE TO NOTICE OF INFORMATION COMMISSIONER REVIEW AND REQUEST
FOR DOCUMENTS
1. We refer to your correspondence dated 10 February 2025 in relation to MR 25/00230 –
Notice of IC review and request for documents (
IC Review) issued under section 54Z of
the
Freedom of Information Act 1982 (Cth) (
FOI Act) (
54Z notice). The IC Review relates
to the Internal Review of Freedom of Information request 25-0019 (
Internal Review) made
on 09 January 2025 by the Department of Health and Aged Care (
department).
Response
2. The department provides the following information and submissions in compliance with
the 54Z Notice and as set out in Direction as to certain procedures to be followed by
agencies and ministers in Information Commissioner reviews.
3. These submissions and documents marked as Attachments A and B have been provided
to the applicant.
4. The document marked as
Confidential Annexure 1 and Confidential Annexure 2 are
provided by the department on the understanding that they wil not be released to the FOI
applicant or any third party.
•
The original FOI request and any correspondence with the FOI applicant that
modifies the scope of the FOI request.
A copy of the original FOI request received on 12 September 2024 and correspondence
modifying the FOI scope of the FOI request are enclosed at
Attachment A.
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•
A marked up and unredacted copy of the documents at issue where material
claimed to be exempt is highlighted with reference made to the exemptions
applied
A marked-up and an unredacted copy of the documents which were identified as
being within scope of the request are attached at
Confidential Annexure 1.
•
Copies of correspondence including file notes of relevant telephone
conversations between the agency or minister, and anyone consulted.
A copy of the department’s consultation with third parties is enclosed at
Confidential
Annexure 2.
•
Any submissions in support of the agency or minister’s decision, including
the application of s 11B of the FOI Act in relation to conditional exemption
claims
The department’s submissions follow below.
•
If any third parties are notified of the IC review, a copy of the written
notifications under s 54P.
The department has not notified any third parties under section 54P.
•
The department is required to engage with Applicant’s in an attempt to
resolve or narrow the issues in dispute and provide evidence of the
engagement
Attachment B is a copy of the correspondence evidencing engagement with the
applicant.
Submissions
Overview
5. The applicant seeks review of the department’s internal review decision, and in particular,
the application of the following exemptions:
• section 42 – documents subject to legal professional proceedings
• section 47 – trade secrets or commercially valuable information
• section 4C – deliberative processes
• section 47E(d) – operations of an agencies
• section 47D – financial or property interests of the Commonwealth
• section 47G – business information
6. In relation to the conditional exemptions, the applicant contends that the department has
not adequately considered the public interest test when deciding to exempt the documents.
7. The department maintains that information in documents one and two are exempt under
sections 42, 47, 47C, 47D, 47E, 47F and 47G, with information considered to be irrelevant
deleted under section 22 of the FOI Act.
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8. Pursuant to section 11A(5) of the FOI Act, the department must give access to conditionally
exempt documents unless access to the documents at the time would, on balance, be
contrary to the public interest. The department maintains that disclosure of the information
in question would be contrary to the public interest and continues to rely on the statement
of reasons for the internal review decision.
9. The department engaged with the applicant in an attempt to resolve or narrow the issues
in the IC review. While it was not possible to resolve the issues in dispute, the issues were
able to be narrowed as the applicant clarified which exemptions they are not seeking a
review of, that is sections 47E(c) and 47F, as well as the information deleted under section
22 of the FOI Act.
10. The focus of the department’s submissions focuses on the exemptions that are being
contended, as listed above in paragraph 5.
Scope of the FOI request
11. On 12 September 2024, the applicant submitted a request for access under the FOI Act:
Al approach to market documents and the department's procurement evaluation and
value for money assessment relating to CN4085822
https://www.tenders.gov.au/Cn/Show/af64de87-4fd4-4b89-825c-2cc0f2978db3 which
shows a contract awarded to Accenture for $289,360,500.00
CN ID: CN4085822
Agency: Department of Health and Aged Care Publish
Date: 5-Aug-2024
Category: Computer services
Contract Period: 2-Jul-2024 to 30-Jun-2026
Contract Value (AUD): $289,360,500.00
Description: ICT Transformation Delivery
Procurement Method: Open tender
12. On 8 November 2024, the original decision identified two documents within the scope of
the applicant’s request. The original decision gave access to one document in full, and the
other document in part subject to the deletion of exempt and irrelevant material.
13. On 12 November 2024, the applicant sought internal review of the original decision under
the FOI Act.
14. On 9 January 2025, in making a fresh decision in accordance with section 54C of the FOI
Act, the internal review decision maker granted access to one document in full and two
documents in part subject to deletion of irrelevant and exempt material.
Applicant’s submissions
15. On 10 February 2025, the Of ice of the Australian Information Commissioner (
OAIC)
notified the department of a request for IC review by the applicant.
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16. The department understands the applicant’s main submissions to be (referring to how the
applicant described them during the engagement process with further information set out
in Attachment B):
• In applying sections 42, 47, 47C and 47E:
I am seeking OAIC review of s42 - Legal
proceedings; s47 - trade secrets or commercially valuable information; s47C -
deliberative processes; s47E - conduct of the operations. I note that these exemptions
have been used extensively and/or to exempt many pages in their entirety. ,
• In applying section 47G:
Specifically concerning the "Benefit to Australian Economy"
section. My core argument is that this section shouldn't relate to third-party business
interests, but rather to a broader economic assessment, and therefore, it should not
be exempt. The applicant has also stated that they are seeking the review of the
application of the conditional exemption in s 47G ‘
for information relating to either the
successful tenderer or other entities that are not unsuccessful tenderers, eg other
service providers supporting the delivery’
• In applying section 47D:
Regarding savings and pricing information - my core argument
is that transparency in this area would support, not hinder, future value for money. You
have not addressed my argument on this.
• In applying the public interest test:
The Department appears to have focused solely on
the potential harm to third parties' commercial interests, without adequately weighing
the substantial public benefit of transparency in this case. The public interest test
requires a genuine balancing of all relevant factors, not simply a prioritization of
commercial confidentiality. The Department's conclusion that the factors "weigh
against disclosure" is unsupported by a rigorous analysis of the competing interests.
Section 42 – Documents subject to legal professional privilege
17. Section 42 of the FOI Act provides that a document is exempt ‘if it is of such a nature that
it would be privilege from production in legal proceedings on the ground of legal
professional privilege.
18. Paragraph 5.149 of the FOI Guidelines issued by the Information Commissioner under
section 93A of the FOI Act (
Guidelines) provides the following criteria by which to
determine whether a communication is privileged:
• whether there is a legal adviser-client relationship
• whether the communication was for the dominant purpose of giving or receiving
legal advice, or for use in connection with actual or anticipated litigation
• whether the advice given is independent
• whether the advice given is confidential
19. The department has exempt information in documents 1 and 2 on the basis that the
information consists of information is subject to legal professional privilege as:
• a legal adviser and client relationship has been established necessary legal
adviser-client relationship exists; the legal adviser was acting in their capacity as a
professional legal adviser and the giving of the advice was attended by the
necessary degree of independence
• the communication was for the purpose of providing and receiving legal advice.
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• the advice was provided independently.
• the advice was provided in confidential.
20. As stated on page 6 of the department’s Internal Review decision, the information
contained in documents 1 and 2 relates to legal advice regarding the procurement of
CN4085822 and contains advice received by the department from an external legal
advisor.
21. The department submits that the material in pages 67-120 of the Confidential Annexure 1
are exempt under section 42 of the FOI Act. The information in these pages was part of
communication made by the department for the purpose of receiving legal advice from its
legal advisors. Further, the material was provided to an external legal services provider for
the purpose of engaging them to provide legal advice on legal issues relating to the drafting
of a work order between the department and the successful tenderer.
22. Therefore, for the reasons above and as outlined in its Internal Review, the department
submits that parts of documents 1 and 2 are exempt under section 42 as the information
is subject to legal professional privilege.
Section 47(1)(b) – Documents disclosing commercial y valuable information
23. Section 47(1)(b) of the FOI Act provides that ‘a document is an exempt document if its
disclosure would disclose 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.
24. The department reiterates the findings of the decision maker for the internal review and
maintains that parts of the documents are exempt under section 47(1)(b) of the FOI Act.
The decision maker set out the type of information sought and identified how the disclosure
of commercially valuable information would, or could reasonably be expected to be,
destroyed or diminished if the information were disclosed, with reference to the FOI Act
and FOI Guidelines.
25. The relevant information includes commercially sensitive and valuable information in
relation to a third party. The information includes pricing information, business strategies,
and other propriety information that are critical to maintaining a competitive advantage in
the market in which the organisation operates.
26. If this information were to be disclosed, the commercial value of the information would be
diminished as the information would reduce the value of the business operation of the
organisation, impact its ability to maintain a competitive advantage in the market they
operate and enable competitors to obtain a commercial advance.
27. Therefore, for the reasons above and as stated in the Internal Review decision, the
department maintains that the relevant information in document 1 and 2 is exempt under
section 47(1)(b) of the FOI Act.
Section 47C – Documents disclosing deliberative processes
28. Section 47C of the FOI Act provides that a document is conditionally exempt if its
disclosure under this Act would disclose in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation that has
taken place, in the course of, or for the purposes of, the deliberative processes involved in
the functions of:
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• an agency; or
• a Minister; or
• the Government of the Commonwealth.
29. Paragraph 6.54 and 6.59 of the Guidelines and in
Dreyfus v Attorney General
(Commonwealth of Australia) (Freedom of Information) [2015] AATA 995
further defined
‘deliberative matter and deliberate processes as follows:
• “Deliberative matter” is a shorthand term for ‘opinion, advice and recommendation’
and ‘consultation and deliberation’ that is recorded or reflected in a document.
• “Deliberative processes” refers to the process of ‘weighing up or evaluat[ing]..
competing arguments or considerations’ or to thinking processes – the process of
reflection, for example, upon the wisdom and expediency of a proposal, a particular
decision or a course of action.’ That is, the deliberative matter recorded in the
document must be related to a process that is being undertaken within government
to consider whether and how to make or implement a decision, revise or prepare a
policy, administer or review a program or some similar activity.
30. Paragraph 6.112 of the Guidelines state:
• [6.112] An agency’s operations may not be substantially adversely affected in the
disclosure could be expected to, lead to a change in the agency’s processes that
would enable those processes to be more ef icient.
31. The Department reiterates the findings of the decision maker for the internal review of the
FOI request. The decision maker identified relevant legislation, FOI guidelines and
applicable case law and applied them to the request.
32. In the Internal Review decision, the department determined that the information that that
relates to the draft contract of services with a third party was conditionally exempt under
section 47C. If there is a reason that section 42 of the FOI Act is not applicable, the
department contends that section 47C of the FOI Act is applicable to the document in the
alternative.
33. As stated in the Internal Review decision, the information that the department contends is
conditionally exempt under section 47C is a draft contract of services with a third party.
The content of the document relates to the department’s deliberation of the terms and
provisions to be contained in the final contract. This material formed part of the
department’s deliberative processes in determining the provisions and terms to be
included in the agreement before entering into the contract with third party.
34. Therefore, for the reasons above and as outlined in its Internal Review, the department
submits that the disclosure of the relevant information would have a substantial adverse
effect on the department’s proper and efficient operations and is conditionally exempt from
disclosure under section 47C of the FOI Act.
Section 47D – Documents containing the financial or property interests of the
Commonwealth
35. Section 47D of the FOI Act provides that ‘a document is conditionally exempt if its
disclosure under this Act would have a substantial adverse ef ect on the financial or
property interests of the Commonwealth or of an agency.’
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36. The relevant material the department submits is conditionally exempt under section 47D
can be characterised as:
• material comprising details of departmental evaluation processes in relation to a
specific panel arrangement,
• material relating to the department procurement methods, or
• material relating to funding availability.
37. The department reiterates the findings of the decision maker for the internal review of the
FOI request. The decision maker set out the type of information sought and identified how
its disclosure could have a substantial adverse ef ect on the financial or property interest
of the Commonwealth, with reference to the FOI Act and the Guidelines.
38. The department submits that the relevant information is conditionally exempt under section
47D as the disclosure would have a substantial adverse effect on the department’s future
tendering processes and in relation to the specific panel arrangement. This is because it
could impact the department’s negotiation with current and future tenderers and in
particular, the successful tenderer which is the subject of the applicant’s FOI request.
39. A consequence of disclosing information which outlines the department’s evaluation
process, and the procurement decision-making methods is that the department’s ability to
evaluate other tenders on the panel arrangement would be affected. In addition, the
capabilities and knowledge acquired by other businesses on the panel arrangement may
decrease. This would reduce the department’s ability to create a competitive environment
to aid future negotiations. As a result, the department’s financial interest in seeking to
obtain best value for money and its negotiating power to achieve a significant saving may
be compromised. This wil in turn, have a substantive adverse effect on the department’s
financial and property interest.
40. The department acknowledges that in the Internal Review decision, the decision-maker
relied on section 47D to conditionally exempt the information relating to the name and
details of the successful tenderer. However, upon further review, the department no longer
seeks to rely on section 47D to conditionally exempt the name of the successful tenderer.
This would be instances where section 47D was used to exempt the name of the
successful tenderer on pages 11, 14, 19 and 150 of Confidential Annexure 1.
41. Therefore, for the reasons above and as outlined in its Internal Review, the department
submits that the disclosure of the relevant information would have a substantial adverse
effect on the department and Commonwealth’s financial or property interest and is
conditionally exempt from disclosure under section 47D of the FOI Act.
Section 47E(d) – Documents disclosing information relating to certain operations of
agencies
42. Section 47E(d) of the FOI Act conditionally exempts a document where disclosure would,
or could reasonably be expected to, prejudice, or have a substantial adverse effect on
certain identified agency operations.
43. The department reiterates the findings of the decision maker for the internal review of the
FOI request, and refers to the reasons on p. 11 and 12 of the Internal Review Decision,
which refers to the relevant legislation and FOI Guidelines.
44. The content of the information the departments considers is conditionally exempt under
section 47E(d) includes details about department’s processes in undertaking its
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procurement and how it assesses tenderers. The disclosure of this information could
reasonably be expected to impact the department’s processes of assesses future tender
applications as well as the sharing vendor information which may impact in how they
response. The effect if this were to occur, would or could reasonably be expected to impact
any negotiations the department may undertake for value for money or savings within its
contract negotiations.
45. For the purposes of this IC review, the department no longer relies on section 47E(d) to
redact information on page 12 of 271 of the Confidential Annexure.
46. Therefore, for the reasons above and as outlined in its Internal Review, the department
submits that the information contained in the documents would have a substantial adverse
effect on proper and efficient conduct of agency operations and is conditionally exempt
from disclosure under section 47E(d) of the FOI Act.
Section 47G – Documents containing business information
47. Section 47G of the FOI Act permits conditional exemptions of documents containing
business information where the disclosure:
• would or could reasonably be expected to unreasonably affect that person
adversely in respect of his or her business or professional affairs or that
organisation or undertaking in respect to its lawful business, commercial or
financial affairs; or
• 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 of the administration of matters administered by
an agency.
48. The department reiterates the findings of the decision maker for the internal review of the
FOI request. The department continues to rely on its Internal Review, and maintains that
parts of documents 1 and 2 are conditionally exempt under section 47G of the FOI Act.
49. The department notes as part of the engagement process, the applicant has made
contentions in relation to the use of section 47G to exempt the information on pages 16-
18 of document two, that is, the information contained in ‘At achment A – Benefit to the
Australian Economy’. The information on pages 16-18 of document 2 consists of
information relating an external organisation and provides detailed information regarding
how the organisation’s operations and their business strategies could benefit the
Australian economy.
50. The applicant has also contended the department’s application of section 47G on
“
information relating to either the successful tenderer or other entities that are not
unsuccessful tenderers, eg other service providers supporting the delivery”
.
51. The material in which the department considers to be conditionally exempt under section
47G includes draft work orders from a third party, business strategies in how the project
will be delivered and the third parties’ service fees and charges.
52. The department considers the information to be ‘business information’ as it is relevant to
the profitability and financial viability of the relevant organisation and does not relate to its
private or internal affairs.
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53. The department submits that the disclosure of this business information would or could be
expected to unreasonably affect the relevant organisation adversely with respect to its
lawful business, commercial or financial affairs. The release of the information could
reasonably be expected to af ect the relevant organisation as it would impact their
profitability and competitive advance.
54. In addition, the department submits that commercial firms may be less likely to engage in
or respond to tender process or enter into agreements with the department if their
commercial business information which was provided as part of a procurement process
was routinely disclosed.
55. The department maintains strong links with its industry stakeholders, including the relevant
third party, therefore it is imperative that the department has the ability to collect and retain
sensitive information without its industry stakeholders fearing that the obtained material
would be released without authorisation. The information may be of some interest to the
applicant; however, it is the department’s argument that its disclosure would not inform
public debate on any matter of public interest in a meaningful way.
56. For the reasons above and as stated in the Internal Review, the department maintains it
position that parts of documents 1 and 2 are conditionally exempt under section 47G(1)(a)
of the FOI Act.
Section 11A - Public Interest
57. Section 11A of the FOI Act requires the decision make to consider whether access to the
document would be contrary to the public interest. The objectives of the FOI Act and the
importance of factors listed in section 11B(3) of the FOI Act, suggest the fol owing:
•
promote the objects of this Act (including all matters set out in sections 3 and 3A);
•
inform debate on a matter of public importance;
•
promote effective oversight of public expenditure;
•
allow a person to access his or her own personal information.
58. The department reiterates the findings of the decision maker for the internal review of the
FOI request. The decision maker identified relevant legislation and the guidelines and
applied them when considering the public interest. The decision maker did not take into
account any of the irrelevant matters set out in section 11B(4) of the FOI Act.
59. The department has considered the applicant’s contentions regarding the application of
the public interest test (see
Attachment B) and provides the additional comments below.
Deliberative processes
60. The department acknowledges that there may be a public interest in disclosing the
information which is conditionally exempt under section 47C as a disclosure may promote
effective oversight of public expenditure. However, the department considers that the
disclosure of the conditionally exempt information under section 47 would impede the
department’s deliberative processes and impact the effective of the department’s decision
making, which is against the public interest.
Financial or property interest of the Commonwealth 61. As discussed in the Internal Review and above, the conditionally exempt information
relates to a specific tender process for a particular panel arrangement.
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62. The department has considered the applicant’s contention that the disclosure of details of
the successful tenderers is in the public interest.
63. However, in considering the public interest factors which weigh against disclosure of the
conditionally exempt information, the department contends that disclosure at this time
would present an obstacle to both the department’s ability to obtain best value for money
and the disclosure of unsuccessful tender applicants has the potential to risk future tender
applicants misrepresenting their potential. Tender applicants may be less inclined to
engage in tender processes or enter into procurement opportunities with the department.
This would impact the department’s ability to obtain best value for money, which is against
the public interest.
64. In referring to
Paul Farrell and Department of Home Affairs (Freedom of Information)
[2022] AICmr 6 at [125], the department contends that the disclosure of the information
could reasonably be expected to prejudice the competitive tendering processes by which
the department negotiates.
Certain operations of agencies
65. The applicant made raised in their Internal Review regarding the disclosure of the
information could potentially prompt positive change, encourage better practices, and
enhance efficiency.
66. However, the department submits that the release of the information would not promote
effective oversight into government processes, such as procurement activities. The
release of the documents would not have provided any additional insight into government
activities that is of the interest to the public. The department considers that a disclosure of
the information conditionally exempt under section 47E(d) would reasonably be expected
to prejudice the department’s ability to obtain confidential information as part of a tender
process and could reasonably be expected to prejudice the competitive commercial
activities of the department, including its ability to enter into contracts.
Business information 67. The applicant references an article from
The Saturday Paper1 in their application for IC
Review noting that the article discusses several contracts the department entered into with
various third parties and the public expenditure associated with those contracts.
68. The department notes that it readily contracts several organisations for services which are
assessed for value for money. The successful tender applications are then made available
via the Austender website.2
69. It is acknowledged that the release of the information could have the potential to promote
effective oversight of public expenditure. In this regard, the department notes that the
criterion in which the department conducted a technical evaluation of the tenderer’s
submission has already been released to the applicant (please see p. 24 of the 271 of
document two).
70. However, in considering the public interest factors weighing against disclosure of the
conditionally exempt business information, the department considers that the disclosure
of the business information would have an unreasonable adverse effect third parties, as
1 https://www.thesaturdaypaper.com.au/news/health/2024/10/05/exclusive-foi-docs-reveal-courting-
health-of icials
2 https://www.tenders.gov.au/

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such disclosure could reasonably prejudice the department’s ability to obtain and retain
confidential information from its contractors and service providers. Further, the department
contends that the disclosure of the information would have an unreasonable adverse effect
on businesses that seeks contracts with the department and would impede the
department’s ability to obtain contracted services in the future.
71. The department does not agree with the applicant’s contention that by not disclosing the
information contained in the documents, it would present a case for potential corruption
and mal-administration within the department’s tender processes or procurement
processes.
72. In this case, the decision maker undertook a balancing exercise in relation to the
application of the conditional exemptions and whether or not disclosure was in the public
interest. The internal review decision maker found that on balance, the conditionally
exempt information was not in the public interest to disclose. The department submits this
was the correct finding in the circumstance.
Contact
73. We trust the above information is of assistance to the OAIC. If you have any further
questions or request additional information, please contact the department’s FOI section
at xxx@xxxxxx.xxx.xx.
Kind regards,
Jady Kwong
Principal Lawyer
Freedom of Information Section
Legal Advice and Legislation Branch
Legal Division
2 April 2025