FOI 4666 Decision on access.pdf

FOI reference: FOI 4666
MW
via Right to Know
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear MW
Decision on your Freedom of Information Request
I refer to your request of 28 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:
May I please request tender documents and contract related to contract awarded
to  Lorica  Health  Pty  Ltd  with  Contract  ID:  CN3417839-A1  and  ATM  ID
RFT01/1617.
On 26 September 2023, the department advised you that it was required to undertake
a third-party consultation pursuant to sections 27 and 27A the FOI Act. Pursuant to
section 15(6) of the FOI Act, this extended the due date of your request until 27 October
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.
FOI decision
I have identified one document that is relevant to your request. This document was in
the possession of the department when your request was received.
I have decided to give access to the document in part, subject to the deletion of exempt
material.
A schedule setting out the document relevant to your request, with my decision in
relation to this document, is at ATTACHMENT A.
My  reasons  for  not  providing  access  to  material  that  has  been  deleted  from  the
document are set out in ATTACHMENT B.


GPO Box 9848 Canberra ACT 2601 - www.health.gov.au

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You were informed on 26 September 2023 that consultation with a third party would
be  necessary.  A  contention  has  been  made  that  parts  of  the  document  should  be
exempt. I have carefully reviewed the submissions of the third party and agree to their
proposed  exemptions.  My  decision  is  to  grant  partial  access  to  the  responsive
documents.
Legislative provisions
The FOI Act, including the provisions referred to in my decision, is 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

Alex Taylor
A/g Assistant Secretary
Compliance Assessment Branch

23 October 2023

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ATTACHMENT B.
REASONS FOR DECISION
FOI 4666
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
•  submissions  from  third  parties  consulted  about  documents  which  contain
information concerning them
•  the content of the document sought, and
•  advice from departmental officers with responsibility for matters relating to
the document sought.
2.
Finding of facts and reasons for decision
My  findings  of  fact  and  reasons  for  deciding  that  the  exemptions  identified  in  the
schedule of documents apply to the document are set out below.
Section 47 - Documents disclosing trade secrets or commercially valuable
information
Subsection 47(1) of the FOI Act provides that a document is an exempt document if its
disclosure would disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information
were disclosed.
Commercially valuable information
Paragraphs 5.204 and 5.205 of the FOI Guidelines state:
5.204
To be exempt under s 47(1)(b) a document must satisfy two criteria:
•  the document must contain information that has a commercial value either
to an agency or to another person or body, and
•  the commercial value of the information would be, or could reasonably be
expected to be, destroyed or diminished if it were disclosed

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5.205
It is a question of fact whether information has commercial value, and whether
disclosure would destroy or diminish that value. The commercial value may relate, for
example,  to  the  profitability  or  viability  of  a  continuing  business  operation  or
commercial activity in which an agency or person is involved. The information need not
necessarily have ‘exchange value’, in the sense that it can be sold as a trade secret or
intellectual property. The following factors may assist in deciding in a particular case
whether information has commercial value:
•  whether the information is known only to the agency or person for whom
it has value or, if it is known to others, to what extent that detracts from its
intrinsic commercial value
•  whether the information confers a competitive advantage on the agency or
person to whom it relates — for example, if it lowers the cost of
production or allows access to markets not available to competitors
•  whether a genuine “arm’s-length” buyer would be prepared to pay to
obtain that information
•  whether the information is still current or out of date (out of date
information may no longer have any value), and
•  whether disclosing the information would reduce the value of a business
operation or commercial activity — reflected, perhaps, in a lower share
price
I am satisfied that the relevant information contained in the documents:
•  is only known to the department and the affected third party for whom it has
value
•  is not known to others, and disclosure of the information would detract from
its intrinsic commercial value
•  confers a competitive advantage on the affected third party in a competitive
tendering environment, and provides the affected third party with access to
markets not available to its competitors
•  is still current, and retains its intrinsic value to the affected third party, and
•  would reduce in value to the business operations or commercial activities of
the affected third party if disclosed.
As notified to you on 26 September 2023, in accordance with the obligations under
section 27 of the FOI Act, the department has consulted with an affected third party.
In  making  my  decision  on  access  to  the  relevant  documents,  I  have  taken  into
consideration the exemption submissions made during that consultation process.
For the reasons outlined above, I have decided that the parts of the document marked
‘s47’ are exempt from disclosure under section 47 of the FOI Act.

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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.
I  am  satisfied  that  the  parts  of  the  documents  marked  ‘s47F’  include  personal
information, being the names and signatures of third parties.
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:
(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:

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...  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
•  whether disclosure of the information might advance the public interest in
government transparency and integrity
I  am  satisfied  that  the  disclosure  of  personal  information  contained  within  the
document  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

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•  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
•  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 consulted with the employer of the affected third parties
regarding  the  disclosure  of  their  personal  information  and  have  considered  any
concerns raised.
For the reasons outlined above, I have decided that the parts of the document 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 document 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)

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•  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.
Having  regard  to  the  above,  I  consider  that  disclosure  of  the  conditionally  exempt
information at this time:
•  would provide access to documents held by an agency of the Commonwealth
which would promote the objects of the FOI Act by providing the Australian
community with access to information held by the Australian Government
•  would not inform debate on a matter of public importance
•  would not promote effective oversight of public expenditure, and
•  would not allow you access to your own personal information.
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, and
•  would  not  achieve  any  public  purpose  and,  on  balance,  would  harm  the
individual’s right to personal privacy.
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  exempt
information would be contrary to the public interest. I am satisfied that the benefit to

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the  public  resulting  from  disclosure  is  outweighed  by  the  benefit  to  the  public  of
withholding the information.
Section 22 – deletion of irrelevant and exempt material
Section  22  of  the  FOI  Act  applies  to  documents  containing  exempt  material
(subparagraph (1)(a)(i))  and  irrelevant  information  (subparagraph (1)(a)(ii))  and
allows an agency to delete such material from a document.
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. This material has been marked with ‘s47’ and ‘s47F’, in accordance
with my decision.
I have also deleted material in the documents which can reasonably be regarded as
irrelevant to your request and prepared an edited copy for release. This information
has been marked ‘s22’ in the documents released to you.
The documents contain the names and telephone numbers of Department of Health
employees below SES level. 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.

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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 and Aged Care
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  Office  of  the  Australian  Information  Commission  (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 IC 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