Dear Specialist Medical Review Council,

Under FOI, I seek copy of the the first page only (cover page is fine), of all current, contracts the SMRC has, that contain a confidentiality clause within them.

I note that the first page of a contract, which is generally a cover page, would reveal the names of the parties to the contract and possibly the date the contract was signed or come into existence, but generally nothing else.

Notably, such information of this type of information in such a cover page would typically be required to be disclosed as part of mandatory Commonwealth procurement disclosures, and thus would have no confidentiality obligations that could apply to it (and given prior public disclosure, no reasonable grounds to engage in third party consultation over).

If the first page contains additional information beyond this, it may be redacted with consent under s 22(2).

Yours faithfully,

Verity Pane

Attn Ms Jan Bowman,

This FOI, having been received by the Specialist Medical Review Council (SMRC) on 18 September 2018, fell due for decision under s 15(5)(b) on Thursday 18 October 2018, which has not been made and is now a deemed refusal response.

DEEMED REFUSAL

The obligation on an agency or minister to notify a decision on the FOI request within the statutory timeframe commences upon receipt of a request that meets the formal requirements in ss 15(2),(2A).

Your agency has failed to do so.

Despite the SMRC acknowledging this FOI on 4 October 2018, and correctly affirming the due date of response as Thursday 18 October 2018, you have failed to provide a decision notice before the expiry of s 15(5)(b), nor given a reason for your non-compliance.

An agency or minister must, as soon as practicable, and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on the request (s 15(5)(b)). Section 15(5)(b) provides that the 30-day processing period commences on the day after the day the agency or minister is taken to have received a request that meets the formal requirements of s s15(2), (2A).

In the absence of any valid notification of a statutory ground that extended that processing period, thr statutory date for decision therefore expired on today on 18 October 2018, and the SMRC breached s 15(5)(b).

A ‘deemed refusal’ occurs if the time for making a decision on a request for access to a document has expired and an applicant has not been given a notice of decision. If this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document on the last day of the ‘initial decision’ period (s 15AC). A notice of the deemed decision is taken to have been given on the last day of the decision period.

The consequence of a deemed refusal is that an applicant may apply for IC review (s 54L(2)(a)). An applicant or third party can also apply for IC review of a deemed affirmation of a decision on internal review (ss 54L(2)(b), 54M(2)(b)). In addition, once the time has expired and there is a deemed decision, the agency or minister cannot impose a charge for access.

Where an access refusal decision is deemed to have been made before a substantive decision is made, the agency or minister continues to have an obligation to provide a statement of reasons on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until any IC review of the deemed decision is finalised. The competing view — that a decision maker is functus officio if a deemed decision arises — would have the consequence that an applicant’s right of access under the FOI Act would be impeded through delay on an agency’s part and could only be revived by an application for IC review. This result would be contrary to the objectives and requirements of the FOI Act.

Not particularly professional. Please remedy asap.

Verity Pane

Dear Ma Bowman,

I acknowledge your decision notice today, which substitutes the deemed refusal decision.

No further action required. You may close this FOI.

Yours sincerely,

Verity Pane