FOI reference: FOI 25-0303 LD
Francis Markham
Right to Know
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Francis Markham,
Decision on your Freedom of Information Request
I refer to your information access request of 7 March 2025 made to the Department of
Health and Aged Care (
the department) under the
Freedom of Information Act 1982
(Cth) (
FOI Act). In your request, you sought access to:
[C]opy of any briefing papers or meeting papers prepared for the Health Chief
Executives Forum (HCEF) or Health Ministers Meetings (HMM) in relation to
a First Nations Schedule for an addendum to the National Health Reform
Agreement (NHRA) (that was announced at the Health Ministers Roundtable,
March 2024).
Please also include any briefing papers prepared for Senate Estimates or talking
points relating to a First Nations Schedule for an addendum to the NHRA over
the period 1 January 2023 to 28 February 2025.
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
access request.
Extension of time to process request
On 13 March 2025, the department wrote to you under section 15AA of the FOI Act
seeking a 7 day extension of time to allow it to process your FOI request.
On this same day, you responded to the department agreeing to the extension of time
request. As a result, the statutory date for your FOI access request was extended to 13
April 2025.
On 27 March 2025, the department informed you that it was consulting with a third
party whose information was contained in documents identified as relevant to your
request under section 26A of the FOI Act. As a result, the statutory timeframe for
your request was extended by 30 days to 13 May 2025.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
link to page 4 link to page 5 link to page 5
- 2 -
Reasonable searches
The department has conducted reasonable searches for documents in scope of your
request. As per the FOI Guidelines [at 3.89], these searches were undertaken with
reference to:
• the subject matter of your request
• the department’s current and past file management systems
• the department’s record management systems
• the individuals within the department with knowledge of the subject matter of
the documents, or who could assist with location of documents
• the age of the documents.
I am satisfied that the searches undertaken were both thorough and reasonable in the
context of the scope of your request, the resources of the department, and the
requirements of the FOI Act and FOI Guidelines.
Decision on access
I have identified 12 documents that are relevant to your request.
These documents were in the possession of the department when your request was
received.
I have decided to refuse access to 12 documents as they contain fully exempt material.
A schedule setting out the documents relevant to your request, with my decision in
relation to those documents, is a
t 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, is available on the
Federal Register of Legislation website:
www.legislation.gov.au/Series/C2004A02562.
Your review rights
I have set out your review rights a
t ATTACHMENT C.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 3 -
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
Tiali Goodchild
Assistant Secretary
Strategic Policy Branch
5th May 2025
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 4 -
ATTACHMENT A.
SCHEDULE OF DOCUMENTS
FOI REQUEST 25-0303 LD
Document Pages
Date
Description
Decision on
Relevant
access
provisions
of FOI Act
1
2
21/03/23
First Nations Roundtable Briefing
Exempt in full
s47B(a)
s47B(b)
2
7
24/05/23
NHRA Negotiations Briefing
Exempt in full
s47B(a)
s47B(b)
3
5
12/03/24
Slides Item
Exempt in full
s47B(a)
s47B(b)
4
4
21/03/24
Briefing 21 March 24
Exempt in full
s47B(a)
s47B(b)
5
3
21/03/24
Extra slides HCEF 21 March
Exempt in full
s47B(a)
s47B(b)
6
2
21/03/24 Paper – First Nations Health Roundtable Exempt in full
s47B(a)
– Topics and Decision
s47B(b)
7
10
22/03/24
Health Roundtable NHRA briefing
Exempt in full
s47B(a)
paper
s47B(b)
8
55
11/05/24
NHRA Slide Pack
Exempt in full
s47B(a)
s47B(b)
9
9
24/05/24
Slides
Exempt in full
s47B(a)
s47B(b)
10
9
24/05/24
6NHRA Negotiation updated slides
Exempt in full
s47B(a)
s47B(b)
11
2
14/06/24
7NHRA negotiation
Exempt in full
s47B(a)
s47B(b)
12
2
14/06/24
9Briefing Health Roundtable
Exempt in full
s47B(a)
s47B(b)
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 5 -
ATTACHMENT B.
REASONS FOR DECISION
FOI REQUEST 25-0303 LD
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 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 exemptions identified in the
schedule of documents apply to the relevant documents are set out below.
3. Section 47B - Documents affecting Commonwealth-State relations
Section 47B of the FOI Act provides that a document is conditionally exempt if
disclosure:
(a)
would, or could reasonably be expected to, cause damage to relations
between the Commonwealth and a State; or
(b)
would divulge information or matter communicated in confidence by or
on behalf of the Government of a State or an authority of a State, to the
Government of the Commonwealth, to an authority of the
Commonwealth or to a person receiving the communication on behalf of
the Commonwealth or of an authority of the Commonwealth.
Paragraph 6.24 of the FOI Guidelines states that a document does not have to have
been supplied or written by the Commonwealth, a State agency or a State authority to
fall within this exemption. The content of the document (and potentially the reason or
circumstances why the document was created) is the deciding factor, rather than the
originator’s identity. It is also not a relevant consideration that all the parties referred
to in the document are aware of the document or of the reference to the particular
agency.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 6 -
Paragraphs 6.26-6.28 of the FOI Guidelines also state:
6.26 Disclosure of the document may cause damage by, for example:
• interrupting or creating difficulty in negotiations or discussions that are
underway, including in the development of joint or parallel policy
• adversely affecting the administration of a continuing Commonwealth-
State project
• substantially impairing (but not merely modifying) Commonwealth-State
programs
• adversely affecting the continued level of trust or co-operation in existing
inter-office relationships
• impairing or prejudicing the flow of information to and from the
Commonwealth
6.27 Decision makers may also need to consider future working relationships where
disclosure may, for example:
• impair or prejudice the future flow of information
• adversely affect Commonwealth-State police operations or investigations
• adversely affect the development of future Commonwealth-State projects
6.28 The potential damage need not be quantified, but the effect on relations arising
from the disclosure must be adverse.
Having regard to the above, I am satisfied that disclosure of the information marked
s47B would substantially impair Commonwealth-State programs, have an adverse
effect on the continued level of trust and co-operation in existing inter-office
relationships and prejudice the flow of information to and from the Commonwealth.
In relation to the test
would or could reasonably be expected, paragraph 5.16-5.18 of the
FOI Guidelines state:
5.16 The test requires the decision maker to assess the likelihood of the predicted or
forecast event, effect or damage occurring after disclosure of a document.
5.17 The use of the word ‘could’ in this qualification is less stringent than ‘would’, and
requires analysis of the reasonable expectation rather than certainty of an event, effect
or damage occurring. It may be a reasonable expectation that an effect has occurred, is
presently occurring, or could occur in the future.
5.18 The mere risk, possibility or chance of prejudice does not qualify as a reasonable
expectation. There must, based on reasonable grounds, be at least a real, significant or
material possibility of prejudice.
I am satisfied that damage that would or could reasonably be expected to occur, based
on reasonable grounds, is real, significant or a material possibility.
Paragraph 6.36 of the FOI Guidelines states that when assessing whether the
information was communicated in confidence, the test is whether the communication
was considered to be confidential at the time of the communication.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 7 -
The circumstances of the communication may also need to be considered, such as:
• whether the communication was ad hoc, routine or required
• whether there were any existing, implied or assumed arrangements or
understandings between the Commonwealth and State concerning the
exchange or supply of information
• how the information was subsequently handled, disclosed or otherwise
published.
I am satisfied that the documents marked ‘s47B(b)’ in the schedule contain information
which was communicated in confidence, and that the communication was considered
to be confidential at the time of the communication.
Consultation with a State or Territory
In making my decision, I have consulted with the relevant State and/or Territory
governments, and I have taken into account any concerns raised by the relevant State
and/or Territory.
For the reasons outlined above, I have decided that the documents marked ‘s47B’ in
the schedule are conditionally exempt from disclosure under section 47B 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.
4. 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 documents would be contrary to the public interest.
Paragraph 6.224 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.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 8 -
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
• 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 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:
s47B(a)
• would adversely affect the administration of a continuing Commonwealth-
State project. Any impediment to the ability of the Commonwealth to work
collaboratively with states/territory stakeholders to deliver government
projects on time and to budget is against the public interest.
• would damage the continued level of trust or co-operation in existing inter-
government working relationships. Any impediment to the ability of the
Commonwealth to work collaboratively with its state and territory counterparts
for the benefit of the Australian public is against the public interest.
• would prejudice the attainment of outcomes of the NHRA. Any impediment to
the ability of the Commonwealth to deliver its programs on time and to budget
is against the public interest.
s47B(b)
• would prejudice or impair the future flow of information from state and
territory governments to the Commonwealth. Any impediment to the ability of
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 9 -
the Commonwealth to work collaboratively with its state and territory
counterparts to the benefit of the Australian public is against the public interest.
In forming my decision, I confirm that 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. I have therefore redacted the conditionally exempt
information from the documents released to you.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 10 -
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 Section (Level 3 North)
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 have the right to seek Information Commissioner (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
• by fax to 02 9284 9666.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
- 11 -
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
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
Document Outline
