Dear Digital Transformation Agency,

Please provide the ministerial brief in full.

Yours faithfully,

Anon

Dear Digital Transformation Agency,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Digital Transformation Agency's handling of my FOI request 'Ministerial Brief MB20-000013: Implementation of the Apple and Google Exposure Notification Framework (ENF)'.

The Office of the Australian Information Commissioner make it clear in their guidance about conditional exemptions that "access must be given unless in the circumstances giving access would, on balance, be contrary to the public interest". It is not sufficient to claim that giving access would interfere with the operation of an agency. To deny access under 47e(d) a decision maker must show that the damage caused by that interference outweighs the benefit that would arise from the public interest in the information being released. That is, would giving access be "on balance" contrary to the public interest?

Arguments in favour of giving access

The Office of the Australian Information Commissioner make it clear that the default position should be to provide access to information that is in the public interest. In determining the extent to which information is in the public interest they ask that decision makers consider whether releasing the information will:
- promote the objects of the FOI Act,
- inform debate on a matter of public importance, and
- promote effective oversight of public expenditure.

In this case it is clear that the release of this information is in the public interest for all of these reasons.

Promote the objects of the FOI Act

The Office of the Australian Information Commissioner suggest that in determining whether releasing information would promote the objects of the FOI Act decision makers should consider whether the information would:
- "reveal the reason for a government decision and any background or contextual information that informed the decision", or
- "enhance the scrutiny of government decision making"

There has been and continues to be considerable public interest in the COVIDSafe app and specifically in the government's decision not to adopt the Exposure Notification system.

Many of the App Store reviews for the COVIDSafe app mention this. Here a few recent examples:

"Please, please just use Google and Apple's Exposure Notifications. We deserve an app that works." - 17 Oct

"This app barely works in it's current form and it needs to remade to use Apple/Google's Exposure Notifications API so things like Exposure Notifications Express can work." - 11 Sep

"...Why doesn't the government utilise Apples 'Exposure Notifications' built into the operating system?" - 8 Sep

"Forget about any more development of this app and just contact Apple enable the built exposure notifications of iOS 13.7 for Australia." - 5 Sep

The information in this document would help to "reveal the reason for a government decision" and providing access would "enhance the scrutiny of government decision making".

Inform debate on a matter of public importance

In your decision you acknowledge that the information in the document is the "subject of a highly topical area of public interest". Providing access would inform debate and assist interested people to inquire into the possible deficiencies in the decision not to adopt the Exposure Notification system.

Arguments against giving access

The Office of the Australian Information Commissioner says the following in their guidelines:

"Citing the specific harm defined in the applicable conditional exemption is not itself sufficient to conclude that disclosure would be contrary to the public interest. However, the harm is an important consideration that the decision maker must weigh when seeking to determine where the balance lies".

The specific harm you have used to justify your decision to redact sections of the document is that:

"The information which has been removed from the documents under [47e(d)] contains confidential information on the negotiation position and intentions for the procurement of goods and services by the DTA. To reveal this information would adversely affect the ability of the DTA to enter into commercial arrangements as it would reveal opinions and other information which would be of advantage to potential vendors, and put the Commonwealth and competitors at a disadvantage".

Information about the Exposure Notification framework is already public

If the redacted information relates to the Exposure Notification framework then its disclosure would not "reveal... information which would be of advantage to potential vendors" as both Google and Apple have extensively documented the Exposure Notification framework and openly publish their documentation. See for example the following websites:
https://covid19.apple.com/contacttracing
https://www.google.com/covid19/exposuren...

Providing access would not provide advantage to one vendor over its competitors

You claim that to provide access to the redacted sections "would be of advantage to potential vendors" and put "competitors at a disadvantage". If access were provided then the unredacted document would be available to all potential vendors and none would have an advantage over any other.

It is unclear the extent to which providing access would put the Commonwealth at a disadvantage in commercial negotiations.

You claim that to reveal the redacted sections would "have the effect of revealing negotiating positions and confidential assessment of a suppliers (sic) products" and then assert that this would "adversely affect the ability of the DTA to enter into commercial arrangements". You go on to claim that this would have a "severe impact on the ability of the DTA to conduct negotiations and procurement of goods and services".

The balance you have to weigh as a decision maker is not the benefit to the public of providing access against the perceived damage to the DTA, it is the benefit to the public against the damage to the public. It does not seem plausible that revealing the redacted sections of this document would have a "severe impact". I suggest that this is hyperbole designed to justify a decision to deny access rather than a genuine assessment of the impact.

To suggest that the damage to the public caused by revealing the DTA's "assessment of a suppliers (sic) products" outweighs the significant benefit of allowing the public to understand the decision not to adopt the Exposure Notification framework would seem to be an error of judgement.

In reviewing this decision, I request that an independent decision maker look at each of the redacted sections and ask the question:

Is the harm to the public interest of releasing the information in this section greater than the benefit to the public interest?

The DTA is no longer involved in commercial negotiations with respect to the COVIDSafe app

Finally, rather than consider this request for information you have simply provided the document with the same redactions you provided in response to an earlier FOI request. Since that time the DTA have transferred responsibility for the COVIDSafe app to the Department of Health. It is likely that any commercial negotiations that were underway when the original decision was made to redact sections of the document are no longer relevant. There would not be any damage to the public interest in providing access to information that may have previously interfered with an earlier commercial negotation between the DTA and a potential vendor.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/m...

Yours faithfully,

Concerned Citizen

Dear DTA FOI,

Thank you for issuing a decision to me. For the avoidance of doubt I would like to request an internal review by an independent decision maker based on my earlier email.

Specifically, for each of the redacted sections could the decision maker please consider whether the harm to the public interest outweighs the benefit to the public interest of providing access?

Yours sincerely,

Concerned Citizen