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
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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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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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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
Dear Health Anon,
Our reference: FOI 25-0019 LD IR IC
We refer to your email of 21 February 2025 regarding your preference for
engagement.
As part of the review process, the department is writing to attempt to
resolve or narrow the issues in dispute in the IC review.
In your application for IC review, you have sought review of the
department’s internal review decision, and the exemptions applied and
queried whether you have been given access to all the relevant documents
within your FOI request.
The original decision
On 12 September 2024, you made a request seeking access to the following
documents under the Freedom of Information Act 1982 (Cth):
All approach to market documents and the department's procurement
evaluation and value for money assessment relating to CN4085822
[1]https://www.tenders.gov.au/Cn/Show/af64d...
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
On 10 October 2024, the department notified you of third-party
consultation under section 27 of the FOI Act and the statutory timeframe
for your request was extended by 30 days making the statutory due date
being 11 November 2024.
On 11 November 2024, the department made the decision to grant access to
one document in full and grant access to another document in part.
The internal review decision
On 11 November 2024, you sought internal review of the department’s
original decision on access stating the following:
Can you confirm that the Department had indeed included the full value of
money assessment as within scope of my request, and if not, why not?
Section 22, part 3(b) requires that the grounds for the deletions be
provided.
The decision maker has not provided details as to the criteria used to
determine the remaining 236 pages of the committee approval minute are
irrelevant to my request.
I also find it difficult to believe there are no other documents that
relate to this procurement evaluation held by your department. Would you
please confirm why that is the case.
On 13 December 2024, the department sought an extension of time under
section 54D and were granted an extension of time till 10 January 2025.
On 10 January 2025, the department made a fresh decision to give access
to:
o one document in full; and
o two documents in part, subject to the deletion of exempt material.
The reasons are outlined in the notice of decision dated 9 January 2025.
Engagement on issues raised in your IC review application
Regarding your application to the Information Commissioner for review of
FOI 25-0019 LD, we have detailed below the exemptions used and why the
exemptions have been applied.
Following review of your email, if there is anything specific you would
like to address, please let us know.
Removal of certain pages from the documents released
+------------------------------------------------------------------------+
|Page numbers|Reason for exempting documents in full |
|------------+-----------------------------------------------------------|
| 12-13 |Section 47D (financial or property interest of the|
| |Commonwealth); and |
| | |
| |Section 47E (certain operations of agencies) |
|------------+-----------------------------------------------------------|
| 36-47 |Section 47(1)(b) (disclosure of documents which have|
| |commercially valuable information) |
|------------+-----------------------------------------------------------|
| 55-61 |Section 42 (disclosure of documents subject to legal|
| |professional privilege |
|------------+-----------------------------------------------------------|
| 62-115 |Section 47C (disclosure of documents containing|
| |deliberative processes) |
|------------+-----------------------------------------------------------|
| 116-142 |47G (Disclosure of documents containing business|
| |information) |
+------------------------------------------------------------------------+
To resolve the issue of missing pages from the documents released and to
assist, the department would be happy to provide you the complete version
of the 271 pages with the 107 pages (as listed above) redacted in full as
indicated in the schedule of documents..
The application of section 47D and 47G exemptions
Section 47G – business information
Section 47G of the FOI Act conditionally exempts a document if its
disclosure under this Act would disclose information concerning a person
in respect of his or her business or professional affairs or concerning
the business, commercial or financial affairs of an organisation or
undertaking, in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that
person adversely in respect of his or her lawful business or professional
affairs or that organisation or undertaking in respect of its lawful
business, commercial or financial affairs.
Paragraph 6.187 of the Guidelines made under s 93A of the FOI Act (FOI
Guidelines) states the criteria in s47G(1)(a) requires a balance of
interests, including the privacy interests of the business and other
interests such as the public interests.
The department relied upon this exemption on the basis that parts of the
document containing business affairs information relate directly to the
profitability and financial viability of an organisation and does not
relate to its private or internal affairs. The disclosure of such
information would have wide consequences in particular information
relating to the unsuccessful applicants (which is not information that is
made publicly available), the pricing and cost of services to the
department and the disclosure of the business affairs of a third party
could affect their viability and profitability.
Section 47D – financial or property interests of the Commonwealth or
agency
Section 47D of the FOI Act conditionally exempts a document if its
disclosure under this Act would have a substantial adverse effect on the
financial or property interests of the Commonwealth or of an agency.
The FOI Guidelines at paragraphs 6.18 and 6.82 provide:
6.18 The term ‘substantial adverse effect’ broadly means ‘an adverse
effect which is sufficiently serious or significant to cause concern to a
properly concerned reasonable person’. The word ‘substantial’, in the
context of substantial loss or damage has been interpreted as including
‘loss or damage that is, in the circumstances, real or of substance and
insubstantial or nominal’.
6.82 A substantial adverse effect may be indirect. For example, where
disclosure of documents would provide the criteria by which an agency is
to assess tenders, the agency’s financial interest in seeking to obtain
the best value for money through a competitive tendering process may be
compromised.
The department relied upon this exemption on the basis that the disclosure
of such documents would have indirect consequences on the operation of the
competitive tendering processes the department undertakes. The information
contained within documents 1 and 2 refer to the information relating the
criteria by which the department assesses tenders, and a disclosure of
this information would be detrimental to the competitive environment of
various panel members to aid future negotiations as well as decrease the
department’s ability to negotiate future savings within other contracts.
Public interest test
In considering of the public interest, the information could promote
oversight of public expenditure in parts. However, it is unlikely to
provide insight into government operations as third parties are providing
their information of their own businesses and commercial affairs of
day-to-day at detail. On the balance of the public interest, the factors
weight against disclosure to ensure that the department can obtain
information from stakeholders in future to engage in the subject matter.
Narrowing the issues in dispute
In an attempt to resolve or narrow the issues in dispute, can you please
advise if you agree to the following:
o with respect to s 47G
o agree that the information is business information
o agree that the information is conditionally exempt
o agree that the public interest does not, when taken into account,
favour disclosure
o with respect to s 47D
o agree the information is the financial or property interests of
the commonwealth
o agree that the information is conditionally exempt
o agree that the public interest does not, when take into account,
favour disclosure.
In addressing the discrepancy between the schedule of documents contained
within the notice and the documents that were disclosed to you as part of
the notification of the internal review decision, the department proposes
to provide you with the complete 271 pages noting that 107 of those pages
will be blank as these were exempt in full.
We would appreciate a response or any further submissions by Friday 21
March 2025.
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: [2][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.
Dear FOI,
First, thank you for confirming which specific exemptions were applied to exempt 107 pages from release following your internal review, I don’t think the breakdown was previously provided.
Unfortunately, this breakdown now strengthens my desire for OAIC review - I had previously thought those pages were inadvertently not included, not deliberately exempted. This reduces my confidence in the Department’s application of the FOI process.
For example, in regards to the Department’s application of Section 47G exemptions, I note that you state “The department relied upon this exemption on the basis that parts of the document containing business affairs information relate directly to the profitability and financial viability of an organisation and does not relate to its private or internal affairs.”
Yet you have excluded hundreds of pages of documents, not “parts of the document”. I do not have confidence that the Department is an objective decision maker, hence why I have sought OAIC review.
I reiterate my request for OAIC review was specific about the exemptions I am asking to be reviewed:
s47G (Business Affairs): 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. You have not addressed my argument on this.
s47D (Financial or property interests of the Commonwealth): 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.
You also fails to address my request for review around public interest arguments:
The argument that releasing the "Benefit to Australian Economy" assessment would strengthen future procurement processes and therefore be in the public interest.
My contention is that disclosure would inform debate on matters of public importance beyond just oversight of public expenditure, including potential corruption and maladministration (citing the Saturday Paper article).
I also contend that the Department has incorrectly weighed the public interest factors, and that it is three out of four, not two out of four.
Finally, you state that on the Public interest test, “the information could promote oversight of public expenditure in parts. However, it is unlikely to provide insight into government operations as third parties are providing their information of their own businesses and commercial affairs of day-to-day at detail. On the balance of the public interest, the factors weight against disclosure to ensure that the department can obtain information from stakeholders in future to engage in the subject matter.”
This assertion drastically understates the significant public interest at stake and misapplies the balancing required by the FOI Act.
I believe the Department's reasoning is deficient for at least the following reasons:
Magnitude of Public Expenditure: The Department minimizes the critical context: this procurement involves nearly $300 million of public funds. The sheer scale of this expenditure inherently elevates the public interest in transparency and accountability. The public has a right to understand how such a substantial sum is being spent and whether value for money is being achieved. This is not a minor transaction; it is a major commitment of taxpayer resources.
Details of the successful tenderers business that are included in the Departments consideration when awarding this tender are therefore strongly relevant to the public interest - if the department considered hundreds of pages of detail on the internal affairs of a private company as being key to the value for money assessment, the public has a strong interest in scrutinising the same details, in my opinion.
Value for Money Justification: The core of the public interest lies in understanding the value for money assessment for this significant procurement. The Department's claim that the information primarily relates to the 'commercial affairs' of third parties is a misdirection. While the tender process undoubtedly involves commercial information, the government's assessment of that information, and its justification for awarding the contract, is squarely a matter of public interest. The FOI Act is intended to provide access to information about government decision-making, not just the raw data provided by third parties. The analysis and justification for spending $300 million are of paramount public concern.
Promoting Efficient Procurement (Deterrent Effect): The Department's argument that disclosure would hinder future engagement with stakeholders is speculative and unsupported. Conversely, increased transparency is likely to enhance, not diminish, the integrity and efficiency of future procurement processes. The knowledge that value-for-money assessments will be subject to public scrutiny creates a powerful incentive for both government agencies and potential suppliers to act with the utmost diligence and integrity. This deterrent effect against potential waste, inefficiency, or even impropriety is a crucial aspect of the public interest. Transparency fosters accountability and encourages best practices, and this is a key tenet of why the FOI act exists.
Misapplication of the Balancing 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.
For these reasons, I do not agree to any narrowing of request for OAIC review.
Yours sincerely,
Health Anon
Dear Health Anon,
Department reference: FOI 25-0019 IR IC
OAIC reference: MR25/00230
Thank you for your email.
The Department of Health and Aged Care (the department) appreciates
engagement to date regarding your Information Commissioner MR25/00230 (IC
review) (FOI 25-0019 IR IC).
We wish to advise the Office of the Australian Information Commissioner
has granted the department an extension of time to Wednesday 2 April 2025
to provide submissions.
The department has noted the contentions you have raised in your email of
18 March 2025 and your IC review application dated 4 February 2025. We
will consider your contentions in the department’s submissions.
For the purposes of narrowing the issues in dispute in the IC review, we
are seeking clarification of the issues in dispute with your internal
review. Can you please clarify whether:
1. you are seeking review of the material that has been conditionally
exempt under sections 47D and 47G of the FOI Act; or
2. you are seeking review of the other exemptions that were relied upon
in the department’s internal review decision and if so, we would
appreciate any comments you may have.
We would appreciate a response by Monday 24 March 2025.
We thank you for your cooperation and look forward to hearing from you.
Kind regards,
FOI Case Officer – Freedom of Information Section
Legal Advice and Legislation Branch
Legal Division | Corporate Operations Group
Australian Government, Department of Health and Aged Care
T: (02) 6289 1666 | E: [1][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.
Dear FOI,
Thanks for checking.
I am not seeking a review of exemptions made under s47F (personal information), s22 (irrelevance) or s47E(C) (management or assessment of personnel). I am also not seeking a review of exemptions made under s47G specifically where the exemption relates to the business or commercial affairs of an unsuccessful tenderer (I think this is just going to be the names of the unsuccessful tenderers).
That leaves the remaining exemptions relied upon by the department that I am seeking OAIC review of
s42 - Legal proceedings
s47 - trade secrets or commercially valuable information
s47C - deliberative processes
s47E - conduct of the operations
s47D - financial or property interests
s47G - business, commercial, or financial affairs (for information relating to either the successful tenderer or other entities that are not unsuccessful tenderers, eg other service providers supporting the delivery)
I note that these exemptions have been used extensively and/or to exempt many pages in their entirety, and as such I would like the OAIC to review the department's use of all of these exemptions.
Thank you,
Health Anon