OFFICIAL
DEFENCE FOI 626/23/24
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the request by Jenny (the applicant), dated and received on 19 January 2024 by
the Department of Defence (Defence), for access to the following documents under the
Freedom of Information Act 1982 (Cth) (FOI Act):
… I seek copy of the letters/documents of the Chair of the DDVA HREC to DVA and
UniSA referred to in paragraph 30 of those Minutes, as well as the responses
received by the Chair from UniSA and DVA referred to in paragraph 31 of those
Minutes.
I also seek copy of any later correspondence between the DDVA HREC and DVA
and/or UniSA about the MATES program
Background:
Defence FOI 371/23/24 released partial copy of the 16 October 2023 Minutes of the
DDVA HREC.
In that released document the DDVA HREC stated about the MATES program:
“29. The Committee noted that due to recent media coverage and multiple emails
from individuals regarding the release of personal data to third parties, a review of
the project file was undertaken by the Secretariat. The outcome was:
a. discrepancies between the approved data and that provided by DVA to the
researchers were identified
b. there was reference to surveys being conducted and tailored over time however
no requests for amendment to reflect changes to surveys have been received
c. the complaint that was referred to in the newspaper article was not reported to
the DDVA HREC.
30. As a result of the findings, the Chair wrote to the researchers and DVA, and
requested further information regarding what data fields are being provided by DVA
(including a description of the fields), copies of updated surveys and further
information regarding the complaint that was referred to in the media article. They
were also advised that no further data transfer was to occur until the matters
identified above were resolved.
31. The University of South Australia and DVA have both provided a response
however these have not addressed the requests for further information and provide
contradictory information.
32. Members were advised that 33 individuals have contacted the HREC and have
raised concerns about the release of their personal information to the University of
South Australia. Another individual has contacted the HREC following receipt of the
DVA response to the Freedom of Information request. The response shows that in
addition to personal health information, the personal details of the individual
OFFICIAL
1
OFFICIAL
including name, date of birth, gender and address are provided to the University of
South Australia.
33. Members noted that the complaint that was submitted to the Office of the
Australian Information Commissioner (OAIC) related to an individual who opted out
of participation in the program and DVA do not fully implement the request. The
Committee had significant concerns about the time frame in which it took to
implement the request. As the complaint related to a data breach and the data would
have continued to have been used for research purposes (and therefore within the
scope of the ethics approval) an adverse notification should have been submitted to
the DDVA HREC.
34. Members discussed the matter at length and agreed on the following:
a. it is unclear what data is being provided for provision of targeted health care
and what is being provided for research purposes
b. no further analysis of the existing data should occur until the matters are
resolved. If the matter remains unresolved by the next meeting, ethical approval
will be suspended until it is able to be addressed.”
Background
2. On 19 February 2024, the applicant was notified that the period for dealing with this
request was extended from 18 February 2024 until 19 March 2024 under section 15(6)
[extension of processing period to comply with requirements of section 26A, 27 or 27A]
of the FOI Act, to enable consultation with third parties in accordance with section 27
of the FOI Act.
3. On 13 March 2024, Defence sought to extend the period for dealing with this request
from 19 March 2024 to 29 March 2024. The applicant requested and was provided with
further explanations but ultimately did not respond within the approved time period.
FOI decision maker
4. I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
5. I have identified nine documents as falling within the scope of the request.
6. The decision in relation to each document is detailed in the schedule of documents.
Exclusions
7. Personal email addresses, signatures, and mobile telephone numbers contained in
documents that fall within the scope of the FOI request, duplicates of documents, and
documents sent to or from the applicant are excluded from this request. Defence has
only considered final versions of documents.
OFFICIAL
2
OFFICIAL
Decision
8. I have decided to:
a.
partially release nine documents in accordance with section 22 [access to
edited copies with exempt or irrelevant matter deleted] of the FOI Act on the
grounds that the deleted material is considered exempt under sections 47E
[Public interest conditional exemption - certain operations of agencies] and
47G [Public interest conditional exemption – business] of the FOI Act; and
b. remove irrelevant material in accordance with section 22 of the FOI Act.
Material taken into account
9. In making my decision, I have had regard to:
a.
the terms of the request;
b. the content of the identified documents in issue;
c.
relevant provisions of the FOI Act;
d. Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines);
e.
advice from Joint Health Command and Governance Group in Defence;
f.
advice from the Department of Veterans’ Affairs (DVA); and
g. submissions from third parties in relation to their business information.
REASONS FOR DECISION
Section 22 – Access to edited copies with exempt or irrelevant matter deleted
10. Section 22 of the FOI Act permits an agency to prepare and provide an edited copy of a
document where the agency has decided to refuse access to an exempt document or that
to give access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access.
11. The documents identified in the schedule of documents as being released in part contain
exempt and irrelevant material that does not relate to the request.
12. Where whole pages are considered to be exempt in full or irrelevant to the scope of the
request, these pages have been removed from the released document pack.
13. I am satisfied that it is reasonably practicable to remove the exempt and irrelevant
material and release the documents to you in an edited form.
Section 47E – Public interest conditional exemptions – certain operations of agencies
14. Section 47E of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
(c) have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or by an agency; and
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of the agency.
OFFICIAL
3
OFFICIAL
15. In relation to section 47E(c) of the FOI Act, the Guidelines provide:
6.102 Where the document relates to the agency’s policies and practices relating to
the assessment and management of personnel, the decision maker must address both
elements of the conditional exemption in s 47E(c), namely, that:
•
an effect would reasonably be expected following disclosure
•
the expected effect would be both substantial and adverse
16. In relation to section 47E(c) of the FOI Act, I consider that disclosure could reasonably
be expected to have an adverse effect on the health and wellbeing of Defence and DVA
personnel.
17. The documents at issue contain the names and contact details of Defence and DVA
personnel that are not in the public domain. Disclosure of material identifying staff
details in could reasonably be expected to have an adverse effect on the health and
wellbeing of these individuals.
18. Additionally, releasing details could adversely affect Defence’s ability to conduct future
activities if employees felt Defence lacked integrity with respect to protecting the
confidentiality of their records; thus affecting the proper and efficient conduct of the
operations of Defence. Consequently, this would result in a substantial adverse effect on
the broader management of personnel.
19. I am satisfied that that there is a reasonable expectation that release would cause distress
to the staff members by adversely affecting their physical and mental wellbeing.
Therefore, disclosure could reasonably be expected to substantially adversely impact
Defence’s staff management function and responsibility to maintain appropriate
workplace health and safety standards.
20. In relation to section 47E(d) of the FOI Act, the Guidelines provide:
6.115 The predicted effect must bear on the agency’s ‘proper and efficient’
operations, that is, the agency is undertaking its operations in an expected manner.
21. In relation to section 47E(d) of the FOI Act, I have identified that the documents convey
key roles of senior and junior officials in Defence and DVA that were engaged in work
related to Veterans' Medicines Advice and Therapeutics Education Services (MATES)
program and/or with the Departments of Defence and Veterans’ Affairs Human
Research Ethics Committee (the Committee). The personal details of all officials are not
well-known or otherwise publicly available. I have determined that there is a reasonable
likelihood that if the information were to be disclosed, that the information could be
used to solicit or harass Defence and DVA personnel, or to circumvent existing
communication channels that support Defence’s efficient operations.
22. I also identified that the documents partially comprise of deliberative and sensitive
matters relating to research and the management of research programs. I consider that
disclosure would, or could, reasonably be expected to have a substantial adverse impact
on the proper and efficient conduct of Defence, by disclosing information regarding its
thinking processes, methods or conduct that is not otherwise well-known.
23. Human Research Ethics Committees play a central role in facilitating and ensuring the
conduct of ethical research. The Committee scrutinises the methodologies and operation
of research programs to provide expert, independent advice to the researchers. The
OFFICIAL
4
OFFICIAL
documents detail how the Committee scrutinised, considered and liaised with the
MATES program to manage matters of concern, ensure compliance and make decisions
about the program. It is reasonable to expect that disclosure of the information could
impede the proper and efficient conduct of the Committee, and by extension, the proper
and efficient conduct of Defence. I am satisfied that disclosure would reasonably be
expected to prejudice Defence’s ability to effectively undertake its operations
24. Further, consultation with third parties identified material that could prejudice the
conduct of matters relating to the MATES program. Disclosure could inhibit the free
exchange of information between the Committee and third parties. All Commonwealth
agencies have a responsibility to properly manage and safeguard private and
confidential information, especially that pertaining to individuals or businesses.
25. It is reasonable to expect that disclosure may be detrimental to the efficient operations
of the Committee, and the broader agencies, including that disclosure could impact the
effective management of information shared in confidence. I am satisfied that the
outcome could reasonably be expected to substantially and adversely affect the proper
and efficient conduct and operations of Defence.
26. In making my decision I have considered:
a.
Paragraphs 6.110-111 of the Guidelines, which provide that an assessment
conducted on a case-by-case basis, based on objective evidence, is required
when considering whether it is appropriate to apply s47E(c). The type of
objective evidence needed will depend on all the circumstances.
b. Paragraph 6.112 of the Guidelines and am satisfied that release of the
information would not lead to any efficiencies in Defence processes.
27. In making my assessment, I have also considered that the FOI Act places no limitations
on the use of information disclosed under the Act, and I am satisfied that that there is a
reasonable expectation that releasing the identified information could reasonably be
expected to negatively impact the health, wellbeing and work of Defence personnel, and
to impact the efficient and effective operations of Defence.
28. Accordingly, I am satisfied that the information is conditionally exempt under sections
47E(c) and 47E(d) of the FOI Act.
Section 47G – Public interest conditional exemptions – business
29. Section 47G(1) of the FOI Act states:
A document is conditionally exempt 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; or
(b) could reasonably be expected to prejudice the future supply of information
to the Commonwealth or an agency for the purpose of the administration of
OFFICIAL
5
OFFICIAL
a law of the Commonwealth or of a Territory or the administration of
matters administered by an agency.
30. I note that the use of the word ‘could’ in this provision requires only reasonable
consideration of the possibility that disclosure may cause the consequences specified.
31. The Guidelines provide:
6.177 Section 47G conditionally exempts documents where disclosure 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 (business information).
…
6.186…To find that s 47G(1)(a) applies, a decision maker needs to be satisfied that if
the document was disclosed there would be an unreasonable adverse effect, on the
business or professional affairs of an individual, or on the lawful business,
commercial or financial affairs of an organisation or undertaking.
…
6.196 A document that discloses the kind of information described at [6.177] above
will be conditionally exempt if the disclosure could reasonably be expected to
prejudice the future supply of information to the Commonwealth or an agency for the
purpose of the administration of a law of the Commonwealth or of a Territory or the
administration of matters administered by an agency (s 47G(1)(b)).
32. Upon examination of the documents, I identified information relating to the business
functions of third parties. I consider that disclosure would, or could reasonably be
expected to adversely affect third parties in respect of their lawful business and
reputation.
33. The documents contain information about contractual arrangements and research
activities engaged by third parties which is not publicly available. This information
contains sensitive details about third parties’ business management plans, the release of
which could disrupt strategic initiatives. This, in turn, could give competitors insights
into the businesses’ practices, which could impact their competitive position. I consider
that disclosure of this information would, or could have a substantial adverse effect on
the future contacts with Defence and other agencies.
34. I consider that release could reasonably be expected to prejudice the future supply of
information to Defence that was communicated in confidence and for the purpose of
advancing Defence’s priorities. Releasing the business information that was
communicated to Defence and government in confidence could reasonably be expected
to diminish confidence in Defence’s ability to protect confidential information.
35. Finally, third parties engaging with Defence could be less willing to share sensitive
business information for fear of impact to their business or professional affairs. This
outcome would adversely affect Defence’s ability to administer and fulfil its mission
and purpose; particularly in relation to engaging in research.
36. Accordingly, I am satisfied that the information is conditionally exempt under section
47G of the FOI Act.
OFFICIAL
6
OFFICIAL
Public interest considerations - sections 47E and 47G
37. Section 11A(5) of the FOI Act states:
The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest.
38. I have considered the factors favouring disclosure as set out in section 11B(3) [factors
favouring access] of the FOI Act. The relevant factors being whether access to the
document would:
(a) promote the objects of this Act (including all the matters set out in sections 3
and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
39. In my view, disclosure of this information would not increase public participation in the
Defence process (section 3(2)(a) of the FOI Act), nor would it increase scrutiny or
discussion of Defence activities (section 3(2)(b) of the FOI Act).
40. Paragraph 6.233 of the Guidelines specifies a non-exhaustive list of public interest
factors against disclosure. The factors I find particularly relevant to this request are that
release of this information could reasonably be expected to adversely impact or
prejudice:
•
Defence’s proper and efficient management functions;
•
Defence’s management of personnel;
•
the fair treatment of individuals; particularly in relation to the conduct of the
MATES Program;
•
the interests of an individual or group of individuals;
•
the protection of an individual’s right to privacy
•
the proper and efficient conduct of Defence, including engagement by
personnel in ethical research activities;
•
the financial interests of the Commonwealth, including the value for money
able to be obtained for the purposes of funding research in Defence and DVA;
•
Defence’s ability to obtain confidential information, including in the future;
•
the business interests or professional affairs of a third party; and
•
that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act.
41. In favour of disclosure, I acknowledge it is the public interest that Defence efficiently
and productively operates, and undertakes it functions in a transparent and proper
manner. I consider there to be public interest in ensuring that Defence is accountable in
its conduct and decision making to the public.
OFFICIAL
7
OFFICIAL
42. While I consider the release of the material removed under sections 47E and 47G may
of be interest to the applicant, disclosure of the conditionally exempt material would not
inform the public debate on any matter of public importance in any meaningful way.
There is also a strong public interest in maintaining the confidentially of the material
and the personal information of individuals identified in the documents.
43. In favour of non-disclosure, I consider Defence must be able to effectively and
efficiently undertake, and execute, its roles and responsibilities to the fullest extent
without risk to the implementation of policy objective, or to the business interests or
professional affairs of third parties supporting Defence in its endeavours. It is in the
public interest that Defence efficiently and productively operates particularly with
regard to its policy objectives.
44. I have also considered disclosure of material has the potential to be used inappropriately
to bypass well established, existing communication channels. Staff who are contacted
directly could be subject to excessive and abusive communications, which may give rise
to work health and safety concerns. Further, I am satisfied that making the information
publicly available it would be disruptive and could reasonably be expected to prejudice
the efficient operations of Defence.
45. In relation to protecting the personal information of the individuals, I have also
considered advice from relevant third parties that releasing the identities of personnel
involved in the MATES program would place them at risk of harassment. I am therefore
satisfied that it is in the public interest not to release information that would identify
these individuals.
46. I am also satisfied that it is in the public interest to protect the commercial interests of
third parties. The protection of this information allows businesses to maintain their
competitive edge, prevents intellectual property theft and preserves trust with Defence.
There is a strong public interest in not releasing information that would unreasonably
affect Defence’s ability obtain confidential information that would unreasonably affect
Defence’s ability to obtain confidential information in the future.
47. I have not taken any of the factors listed in section 11B(4) [irrelevant factors] of the FOI
Act into account when making this decision.
48. I am satisfied, based on the above particulars, the public interest factors against
disclosure outweigh the factors for disclosure, and that, on balance, it is against the
public interest to release the information to you.
49. Accordingly, I find that the information is conditionally exempt under sections 47E and
47G the FOI Act.
Chris Owens
Media and Information Disclosure
Department of Defence
OFFICIAL
8
