16 April 2025
FOI ref: 3858 IR
Mr Francis Markham
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Markham
Freedom of Information Request – Internal Review Decision
I am writing to notify you of my decision regarding your request on 17 March 2025 for internal
review of the access refusal decision under the Freedom of Information Act 1982 (FOI Act) of
Daniel Ledda dated 17 March 2025 (original decision).
Your request
On 11 February 2025 you requested access to the fol owing:
…documents prepared by Treasury since 1 January 2018 that model, estimate, or
otherwise quantify the decline in demand for legal tobacco due — in whole or in part —
to behavioural responses to tobacco excise rate increases. Please include any documents
describing the methodology and methods used to produce such models, estimates or
quantifications. Such documents are al uded to in the "BACK POCKET BRIEF – Il icit
tobacco" (FOI 3812, Document 2) which states that:
"The il icit market is driven by a multitude of factors of which the duty rate is only one...
When costing increases to excise rates Treasury estimates the decline in demand for
legal tobacco due to behavioural responses. This decline in demand includes, for
example, a reduction in tax col ections due to consumers deciding to quit smoking as wel
as consumers shifting to the il icit market.":
Original decision
The original decision identified seven relevant documents of which one document was
released in ful (Document 5), three documents were released in part (Documents 1 to 3) and
access was refused in ful to three documents (Documents 4, 6 and 7). Documents 1, 2, 3 and
5 were released to you, edited under section 22 of the FOI Act to remove exempt and
irrelevant information.
Langton Crescent
Parkes ACT 2600
Australia
P: +61 2 6263 2800
Your internal review submissions
You submitted the fol owing in support of your internal review application,
I am writing to request an internal review of the decision to exempt Documents 2, 3, 4, 6,
and 7 either in part or in ful under section 47E(d) of the FOI Act. I submit that the
grounds for exemption under section 47E(d) are not adequately established in the
decision for the fol owing reasons:
1. The claimed potential for exploitation is implausible
The decision maker claims that disclosure "could reasonably be expected to lead to
attempts to exploit or speculate on future measures impacting tobacco excise and
revenue calculations, including the potential for model ing being manipulated to project
incorrect or misleading information."
This claim is implausible and lacks substantiation. The modeling methodologies used by
Treasury would be based on economic principles and publicly available data. Knowledge
of these methodologies would provide the tobacco industry with little capability to
manipulate future government decisions that they do not already possess. Major
tobacco companies already employ sophisticated economic modeling capabilities and
have access to more detailed industry data than the government.
The decision fails to demonstrate a link between disclosure of the requested information
and any "substantial adverse effect" on Treasury operations.
2. Any attempt to manipulate government processes would be illegal
If tobacco industry actors were to attempt to use this information to manipulate
government processes by providing misleading tax data to the government, as implied,
they would potential y be engaged in il egal activity. The potential for information to be
misused for il egal purposes is not a valid ground for exemption under the FOI Act.
Otherwise, virtual y any government information could be withheld on the basis that
someone might misuse it.
The proper remedy for potential il egal misuse of information is enforcement of existing
laws against such activities, not withholding information from the public.
3. Potential embarrassment is not a valid ground for exemption
While not explicitly stated in the decision, there is an implication that disclosure of the
methodologies might expose deficiencies or limitations in Treasury's modeling
approaches. I note that potential embarrassment or revelation of errors in government
methodologies is not a valid ground for exemption under the FOI Act.
The Information Commissioner has consistently held that protecting agencies from
criticism or scrutiny is contrary to the objects of the FOI Act, which aims to promote
scrutiny, discussion, comment and review of government activities.
4. The public interest strongly favors disclosure
The public interest in understanding how Treasury models the effects of tobacco excise
increases is significant. This information is crucial for:
a. Evaluating the effectiveness of tobacco control policies b. Assessing whether
government revenue projections are reasonable c. Understanding the relationship
between tax policy and public health outcomes d. Enabling independent researchers to
verify and build upon government methodologies
These public interest factors substantial y outweigh any speculative adverse effects on
agency operations.
5. The capacity for informed public debate requires disclosure
The decision maker states that one factor against disclosure is "the capability of public
debate about this issue without disclosure of the documents." However, meaningful and
informed public debate about the effectiveness of tobacco taxation policy requires access
to the methodologies used to assess that effectiveness. Without such access, public
debate is unnecessarily constrained.
Material considered
The material to which I have had regard in making this decision includes the scope of your FOI
request and the matters raised in your request for internal review, the content of the
documents subject to the request, advice from subject matter experts within the Treasury,
third party consultation response from the Australian Taxation Office (ATO), the relevant
provisions in the FOI Act and the Guidelines issued by the Australian Information
Commissioner under section 93A of the FOI Act (FOI Guidelines).
Internal review decision
I am authorised under section 23 of the FOI Act to make decisions. I have conducted an
internal review of the original decision, which is a fresh consideration of the matter. I was not
involved in, nor consulted about, the making of the decision under review.
I am satisfied the seven identified documents are the only documents relevant to your request
and the redactions of material outside the scope of your request have been correctly applied.
For the reasons outlined below, I have decided to grant partial access to Document 4 and
I otherwise affirm the original decision. For clarity, the attached document set discloses both
the information released under the original decision as wel as the additional information
I have now released in Document 4.
Reasons
Summary
I would alter the decision, in part, as it relates to certain material in document 4 but otherwise
affirm the original decision as it relates to redacted documents or documents not released
pursuant to section 47E(d) of the FOI Act. In relation to document 4, I have decided to disclose
information that is disclosed in the 2023-24 Budget.
Internal Treasury email addresses
As indicted in the original decision, documents 2 and 3 contain information from which
internal Treasury email addresses could reasonably be ascertained. These internal email
addresses efficiently support open communication between teams and other agreed groups.
Disclosure of those addresses would diminish free-flowing communication and have an
adverse impact on the operations of the department.
The public interest in disclosure of this information does not outweigh the public interest in
government agencies maintaining internal channels of communications in situations where
there are established channels for the public to communicate with those agencies.
Compliance activity
Documents 2, 4, 6 and 7 contain material that could disclose information relating to the extent
of Commonwealth knowledge of il icit tobacco use. In the wrong hands, this information could
benefit the planning of future criminal activity and interfere with the proper and efficient
operation of various agencies involved in addressing il icit tobacco and the col ection of excise.
On the basis that criminal activity could be encouraged and compliance activities undermined,
it would be contrary to the public interest to disclose that information. My view in this aspect
of the documents is supported by the ATO’s consultation response.
Detriment to Treasury model ing capability
In addition, the publication of other parts of document 4 could jeopardise the ability of the
Department to continue an efficient method by which internal quality reviews of the reliability
of model ing estimates can be undertaken and model ing capability developed. This would
have a substantial adverse effect on how the Department undertakes its work in providing
advice to Government to inform Cabinet decisions.
The public interest in not disclosing this information outweighs the public interest in
disclosure. Information on the costing is made public and parties can develop their own
costing methodologies to assess that costing. Disclosure is further outweighed by the risk to
jeopardising the quality of advice to Government.
Treasury ICT details
In addition, I agree with the further comments made in relation to document 7 in the original
decision. The public interest in preserving the integrity of government ICT systems outweighs
the public interest in disclosure.
Your internal review submissions
I am not persuaded by any of your internal review submissions to take a contrary view to that
explained above. I do not accept potential criminal misuse of the information is implausible. I
find the risk of harm is real and I am not prepared to make the exempt information public to
test that proposition to the potential detriment of agencies administering tobacco excise laws
and policy, and, by extension, the detriment of the Australian taxpayer.
I also do not accept your submission potential use of the information for il egal purposes is not
a valid ground for FOI exemption. To the contrary, paragraph 6.233(c) of the FOI Guidelines
relevantly provides could reasonably be expected to prejudice security, law enforcement, public
health or public safety as public interest reasons mitigating against disclosure of conditional y
exempt information.
Your third submission al eges an implication from the decision letter that disclosure of the
methodologies might expose deficiencies or limitations in Treasury's model ing. The
Department understands that embarrassment is not a valid ground for refusing disclosure.
With respect to your fourth and fifth submissions, my decision releases al information that
does not contain material that is sufficiently prejudicial as to adversely affect the Treasury’s
operations to such a degree that disclosing it is contrary to the public interest.
A decision regarding the public interest necessarily requires a balancing of the objects of the
FOI Act against real harm that could result from disclosure of the prejudicial information.
Based on the identified potential harm from disclosure of the conditional y exempt material,
I am not persuaded by your public interest submissions to take a different view in reaching my
decision.
Conclusion
For the above reasons, I have decided to grant partial access to Document 4 and I otherwise
affirm the original decision.
Review rights
A statement setting out your review rights regarding my decision is attached.
Yours sincerely
Diane Brown
Deputy Secretary
Revenue Group
INFORMATION ON RIGHTS OF REVIEW
1.
APPLICATION TO AUSTRALIAN INFORMATION COMMISSIONER (INFORMATION
COMMISSIONER) FOR REVIEW OF DECISION
Section 54L of the FOI Act gives you the right to seek a review of the decision from the
Information Commissioner. An application for review must be made within 60 days of
receiving the decision.
An application for review must be in writing and must:
– give details of how notices must be sent to you; and
– include a copy of the notice of decision.
You should send your application for review to:
The Information Commissioner
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
AND/OR
2.
COMPLAINTS TO THE INFORMATION COMMISSIONER
Section 70 of the FOI Act provides that a person may complain to the Information
Commissioner about action taken by an agency in the exercise of powers or the performance
of functions under the FOI Act.
A complaint to the Information Commissioner must be in writing and identify the agency the
complaint is about. It should be directed to the fol owing address:
The Information Commissioner
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
The Information Commissioner may decline to investigate the complaint in a number of
circumstances, including that you did not exercise your right to ask the agency, the
Information Commissioner, a court or tribunal to review the decision.
