FOI 4621 Decision on access.pdf

FOI reference: FOI 4621
Mr Rob Cawthorne
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Cawthorne
Decision on your Freedom of Information Request
I refer to your request of 12 August 2023, to the Department of Health and Aged Care
(the department), seeking access under the Freedom of Information Act 1982 (Cth) (FOI
Act) to:
…  copies  of  communications  between  the  Department  of  Health  and  the
Department  of  Climate  Change,  Energy,  the  Environment  and  Water  with
regard  to  the  certification,  approval  and  advertisement  of  British  American
Tobacco or any other Tobacco manufacturers certified under the Climate Active
Carbon Neutral certification program.
Clarification/Modification of scope of request
On 22 August 2023, following consultation with you, you further clarified your request
with:
The  information  I  am  seeking  would  exist  between  1st  August  2022  and
31 July 2023.
I am authorised under subsection 23(1) of the FOI Act to make decisions in relation to
Freedom of Information requests. I am writing to notify you of my decision on your
request.
On 4 October 2023, pursuant to section 15AB of the FOI Act, the Office of the Australian
Information Commissioner (OAIC) granted the department an extension of time to
process your request until 11 October 2023.
FOI decision
I have identified 7 documents that are relevant to your request. These documents were
in the possession of the department when your request was received.
GPO Box 9848 Canberra ACT 2601 - www.health.gov.au

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I have decided to:
•  give access to 2 documents in full, and
•  give  access  to  5  documents  in  part,  subject  to  the  deletion  of  exempt  and
irrelevant material.
A schedule setting out the documents relevant to your request, with my decision in
relation to those documents, is at ATTACHMENT A.
My  reasons  for  not  providing  access  to  material  that  has  been  deleted  from  the
documents are set out in ATTACHMENT B.
Legislative provisions
The FOI Act, including the provisions referred to in my decision, are available on the
Federal Register of Legislation website: www.legislation.gov.au/Series/C2004A02562.
The Privacy Act 1988 (Cth) (Privacy Act), can also be accessed from the Federal
Register of Legislation website here: www.legislation.gov.au/Series/C2004A03712.
Your review rights
I have set out your review rights at ATTACHMENT C.
Publication
Where I have decided to release documents to you, the department may also publish
the released material on its Disclosure Log. The department will not publish personal
or business affairs information where it would be unreasonable to do so.
For your reference the department’s Disclosure Log can be found at:
www.health.gov.au/resources/foi-disclosure-log.
Contacts
If you require clarification of any matters discussed in this letter you can contact the
FOI Section on (02) 6289 1666 or at xxx@xxxxxx.xxx.xx.
Yours sincerely

Karlie Brown
Acting co-Assistant Secretary
Tobacco and E-Cigarette Control Branch
11 October 2023

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ATTACHMENT B.
REASONS FOR DECISION
FOI 4621
1.
Material taken into account
In making my decision, I had regard to the following:
•  the FOI Act
•  guidelines  issued  by  the  Australian  Information  Commissioner  under
section 93A of the FOI Act (FOI Guidelines)
•  the terms of your FOI request as outlined above
•  consultation  with  another  government  agency,  the  Department  of  Climate
Change, Energy, the Environment and Water
•  the content of the documents sought, and
•  advice from departmental officers with responsibility for matters relating to
the documents sought.
2.
Finding of facts and reasons for decision
My  findings  of  fact  and  reasons  for  deciding  that  the  exemption  identified  in  the
schedule of documents applies to the relevant parts of documents are set out below.
Section 42 - Documents subject to legal professional privilege
Section 42 of the FOI Act provides that a document is an exempt document if it is of
such a nature that it would be privileged from production in legal proceedings on the
ground of legal professional privilege.
The FOI Guidelines state:
5.127
The  FOI  Act  does  not  define  LPP  for  the  purposes  of  the  exemption.  To
determine  the  application  of  this  exemption,  the  decision  maker  needs  to  turn  to
common law concepts of LPP.
5.129
At common law, determining whether a communication is privileged requires
a consideration of:
•  whether there is a legal adviser-client relationship
•  whether the communication was for the purpose of giving or receiving legal
advice, or use in connection with actual or anticipated litigation
•  whether the advice given is independent
•  whether the advice given is confidential

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I am satisfied that the parts of the documents marked ‘s42’ consist of information that
is subject to legal professional privilege. I am satisfied that:
•  the  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  brought  into  existence  for  the  dominant  purpose  of
giving or receiving legal advice
•  the advice was provided independently, and
•  the advice provided was confidential.
For the reasons outlined above, I have decided that the parts of the documents marked
‘s42’ are exempt from disclosure under section 42 of the FOI Act.
Section 47F – Documents affecting personal privacy
Section  47F  of  the  FOI  Act  provides  that  a  document  is  conditionally  exempt  if  its
disclosure would involve the unreasonable disclosure of personal information about
any person (including a deceased person).
Personal Information
Personal information has the same meaning as in the Privacy Act. Specifically, section
6 of the Privacy Act provides that personal information means information or an opinion
about an identified individual, or an individual who is reasonably identifiable whether
the information or opinion is true or not; and whether the information or opinion is
recorded in a material form or not.
Paragraph  6.131  of  the  FOI  Guidelines  states  that  for  particular  information  to  be
personal information, an individual must be identified or reasonably identifiable.
Paragraph 6.130 of the FOI Guidelines states that personal information can include a
person’s  name,  address,  telephone  number,  date  of  birth,  medical  records,  bank
account details, taxation information and signature.
An  individual  is  a  natural  person  rather  than  a  corporation,  trust,  body  politic  or
incorporated association.
This  provision  of  the  FOI  Act  specifically  extends  to  the  personal  information  of
deceased persons.
I am satisfied that parts of the documents marked ‘s47F’ contain personal information,
being the names and contact details of staff of another Commonwealth Agency.
Unreasonable Disclosure of Personal Information
Subsection 47F(2) of the FOI Act provides that in determining whether the disclosure
would  involve  the  unreasonable  disclosure  of  personal  information,  I  must  have
regard to the following matters:

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(a)  the extent to which the information is well known
(b)  whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document
(c)  the availability of the information from publicly accessible sources
(d) any other matters that the agency or Minister considers relevant.
Paragraph 6.138 of the FOI Guidelines states that:
The personal  privacy exemption is designed to prevent the unreasonable invasion of
third parties’ privacy. The test of ‘unreasonableness’ implies a need to balance the public
interest  in  disclosure  of  government-held  information  and  the  private  interest  in  the
privacy of individuals. The test does not, however, amount to the public interest test of
s  11A(5),  which  follows  later  in  the  decision  making  process.  It  is  possible  that  the
decision maker may need to consider one or more factors twice, once to determine if a
projected effect is unreasonable and again when assessing the public interest balance.
I note that the AAT, in Re Chandra and Minister for Immigration and Ethnic Affairs [1984]
AATA 437 at paragraph 259, stated that:
...  whether  a  disclosure  is  ‘unreasonable’  requires  …  a  consideration  of  all  the
circumstances,  including  the  nature  of  the  information  that  would  be  disclosed,  the
circumstances in which the information was obtained, the likelihood of the information
being information that the person concerned would not wish to have disclosed without
consent, and whether the information has any current relevance … it is also necessary in
my  view  to  take  into  consideration  the  public  interest  recognised  by  the  Act  in  the
disclosure of information … and to weigh that interest in the balance against the public
interest in protecting the personal privacy of a third party ...
Paragraphs 6.142 and 6.143 of the FOI Guidelines state:
6.142
Key factors for determining whether disclosure is unreasonable include:
•  the author of the document is identifiable
•  the documents contain third party personal information
•  release of the documents would cause stress on the third party
•  no public purpose would be achieved through release.
6.143
As  discussed  in  the  leading  s  47F  IC  review  decision  of  ‘FG’  and  National
Archives of Australia [2015] AICmr 26, other factors considered to be relevant include:
•  the nature, age and current relevance of the information
•  any  detriment  that  disclosure  may  cause  to  the  person  to  whom  the
information relates
•  any opposition to disclosure expressed or likely to be held by that person
•  the circumstances of an agency’s collection and use of the information
•  the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
•  any  submission  an  FOI  applicant  chooses  to  make  in  support  of  their
application as to their reasons for seeking access and their intended or likely
use or dissemination of the information, and

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• whether disclosure of the information might advance the public interest in
government transparency and integrity.
The documents contain the personal information of Australian Public Service (APS)
staff who are not in the Senior Executive Service (SES).
However, I note that in Chief Executive Officer, Services Australia and Justin Warren [2020]
AATA 4557 (Warren), at paragraph 83, Deputy President S A Forgie noted:
The whole of the FOI Act is a finely tuned balance between two interests. In one side of
the  balance  is  the  facilitation  and  promotion  of  access  to  a  national  resource  that  is
information  held  by  Government,  which  enables  increased  public  participation  in
Government processes and increased scrutiny, discussion, comment, and review of the
Government’s  activities.  In  the  other  is  the  protection  of  the  national  interest,  the
essential operation of government and the privacy of those who deal with government.
It  is  most  important,  therefore,  that  its  provisions  be  read  very  carefully  and  that
presumptions should not be introduced that are not expressed, or necessarily implicit,
in the words Parliament has chosen to achieve the balance that it wants. Those words
should  be  the  starting  point  of  any  consideration  rather  than  any  presumption  that
agencies and ministers should start from the position that the inclusion of the full names
of staff in documents increases transparency and increases the objects of the FOI Act.
I  am  satisfied  that  the  disclosure  of  personal  information  contained  within  the
documents  would,  in  the  circumstances,  constitute  an  unreasonable  disclosure  of
personal information for the following reasons:
• the individuals whose personal information is contained in the documents are
identifiable
• release of this information would cause anxiety to the individuals concerned
• no  further  public  purpose  would  be  achieved  through  the  release  of  the
personal information, noting that the personal information is included in the
document as a result of their employment circumstance
• the information is current and has not lost its sensitivity through the passage of
time
• the  placing  of  the  personal  information  of  individuals  who  work  for  a
government department into the public domain has the potential to place those
individuals at risk of harassment, abuse, threats and intimidation. This would
be detrimental to the individuals concerned, and potentially also their families.
Mitigating this risk is even more important with the prevalence of social media
and  technology  allowing  individuals  to  be  more  easily  identifiable  and
contactable in online environments
• the  individuals  would  not  expect  the  information  to  be  placed  in  the  public
domain, have not otherwise provided the department with authority to disclose
their personal information, and detriment may be caused to the individuals to
whom the information relates, and

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•  the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
In  making  my  decision,  I  have  also  taken  into  account  the  views  of  the  other
Commonwealth agency, which objected to the disclosure of the names and  contact
details of its staff.
For the reasons outlined above, I have decided that the parts of the documents marked
‘s47F’ are conditionally exempt from disclosure under section 47F of the FOI Act.
Where  a  document  is found  to  be  conditionally  exempt,  the  department  must give
access to that document unless access to the document at this time would, on balance,
be contrary to the public interest. I have addressed the public interest considerations
below.
Disclosure is not in the public interest
Pursuant  to  subsection  11A(5)  of  the  FOI  Act,  the  department  must  give  access  to
conditionally exempt documents unless access to the documents at that time would,
on  balance,  be  contrary  to  the  public  interest.  I  have  therefore  considered  whether
disclosure of the parts of the documents conditionally exempt under section 47F would
be contrary to the public interest.
Paragraph 6.5 of the FOI Guidelines states:

The public interest test is considered to be:
•  something that is of serious concern or benefit to the public, not merely
of individual interest
•  not something of interest to the public, but in the interest of the public
•  not a static concept, where it lies in a particular matter will often depend
on a balancing of interests
•  necessarily broad and non-specific and
•  relates to matters of common concern or relevance to all members of the
public, or a substantial section of the public.
Factors favouring disclosure
Section 11B of the FOI Act provides that factors favouring access to documents in the
public  interest  include  whether  access  to  the  documents  would  do  any  of  the
following:
•  promote the objects of the FOI 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, or
•  allow a person to access his or her own personal information.

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Having  regard  to  the  above,  I  consider  that  disclosure  of  the  conditionally  exempt
information at this time would promote the objects of the FOI Act.
Factors weighing against disclosure
I  consider  that  the  following  public  interest  factors  weigh  against  disclosure  of  the
conditionally exempt information at this time, on the basis that disclosure:
•  could  reasonably  be  expected  to  prejudice  the  protection  of  the  relevant
individuals’  right  to  personal  privacy,  noting  that  the  substance  of  the
documents has been released to you and disclosure of the personal information
would not provide any further insight into the workings of government
•  would  not  achieve  any  public  purpose  and,  on  balance,  would  harm  the
individuals’ right to personal privacy, and
•  would prejudice a Commonwealth agency’s ability to meet its statutory
obligations and responsibilities in relation to the work health and safety of its
employees.
In making my decision, I have not taken into account any of the irrelevant factors set
out in subsection 11B(4) of the FOI Act, which are:
(a) access  to  the  document  could  result  in  embarrassment  to  the
Commonwealth  Government,  or  cause  a  loss  of  confidence  in  the
Commonwealth Government;
(b) access  to  the  document  could  result  in  any  person  misinterpreting  or
misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to
which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Conclusion
For the reasons set out above, after weighing all public interest factors for and against
disclosure, I have decided that, on balance, disclosure of the conditionally exemption
information would be contrary to the public interest. I am satisfied that the benefit to
the  public  resulting  from  disclosure  is  outweighed  by  the  benefit  to  the  public  of
withholding the information.
Section 22 – deletion of irrelevant material
Section  22  of  the  FOI  Act  applies  to  documents  containing  irrelevant  information
(subparagraph 22(1)(a)(ii))  and  allows  an  agency  to  delete  such  material  from  a
document.
I  have  deleted  material  in  the  documents  which  can  reasonably  be  regarded  as
irrelevant to your request and prepared an edited copy for release, including parts of
email chains that solely relate to administrative matters such as the organisation of

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meeting times. This information has been marked ‘s22’ in the documents released to
you.
The  documents  also  contain  the  names  and  telephone  numbers  of  departmental
employees. When your request was acknowledged, we notified you that this material
would be considered irrelevant to the scope of your request unless you told us that
you  were  seeking  access  to  that  material.  On  the  basis  that  you  did  not  notify  us
otherwise,  this  information  has  been  deleted  under  section 22  of  the  FOI  Act  as
outlined above.
You have made a request on a website where the documents as released can be viewed
by the public. Pages 4, 16 and 30 contain a mobile number and address that although
would be known you, may not already be in the public domain. I have deleted this
material under section 22 of the FOI Act.
In addition, as I have decided that some of the information in the documents released
to you is exempt from disclosure, I have prepared an edited copy of the documents by
deleting the exempt information from the documents under section 22 of the FOI Act
as outlined above.

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ATTACHMENT C.
YOUR REVIEW RIGHTS
If you are dissatisfied with my decision, you may apply for a review.
Internal review
You  can  request  internal  review  within  30  days  of  you  receiving  this  decision.  An
internal  review  will  be  conducted  by  a  different  officer  from  the  original  decision-
maker.
No particular form is required to apply for review although it will assist your case to
set out the grounds on which you believe that the original decision should be changed.
Applications for internal review can be made by:
Email:
xxx@xxxxxx.xxx.xx
Mail:
FOI Unit (MDP 516)
Department of Health
GPO Box 9848
CANBERRA ACT 2601
If you choose to seek an internal review, you will also have a right to apply for
Information Commissioner review (IC review) of the internal review decision once it
has been provided to you.
Information Commissioner review or complaint
You  also  have  the  right  to  seek  IC  review  of  this  decision.  For  FOI  applicants,  an
application for IC review must be made in writing within 60 days of the decision. For
third parties who object to disclosure of their information, an application for IC review
must be made in writing within 30 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge
a complaint with the OAIC.  However, the OAIC suggests that complaints are made
to the agency in the first instance.
While  there  is  no  particular  form  required  to  make  a  complaint  to  the  OAIC,  the
complaint should be in writing and set out the reasons for why you are dissatisfied
with the way your request was processed. It should also identify the Department of
Health and Aged Care as the agency about which you are complaining.
You  can  make  an  IC  review  application  or  make  an  FOI  complaint  in  one  of  the
following ways:
•  online at www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/
•  via email to xxxxx@xxxx.xxx.xx
•  by mail to GPO Box 5218 Sydney NSW 2001, or

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•  by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is
available on the OAIC website here: www.oaic.gov.au/freedom-of-information/foi-
review-process.
Complaint
If  you  are  dissatisfied  with  action  taken  by  the  department,  you  may  also  make  a
complaint directly to the department.
Complaints to the department are covered by the department’s privacy policy. A form
for lodging a complaint directly to the department is available on the department’s
website here: www.health.gov.au/about-us/contact-us/complaints