OFFICIAL

FOI reference: FOI 25-0319 LD
Mr Francis Markham
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Markham
Decision on your Freedom of Information Request
I refer to your information access request of 18 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:
All documents and correspondence (including but not limited to emails, meeting
notes, briefing papers, and Teams/chat messages) between:

•⁠ Officials in the Department of Treasury and the Department of Health and Aged
Care
•⁠ Officials in the Department of the Prime Minister and Cabinet and the
Department of Health and Aged Care

That specifically relate to:

•⁠ The potential wording, drafting, or formulation of what became clause K10 in
Schedule K (Addendum to the National Health Reform Agreement: Revised Public
Hospital Funding and Health Reform Arrangements); OR
•⁠ Any other discussed inclusions relating to Aboriginal and Torres Strait Islander
peoples and/or Closing the Gap within Schedule K

Please only include documents or correspondence dated between 1 October 2024 and
12 February 2025.

For clarity, I am NOT requesting any correspondence relating to the wording of any
proposed or drafted five-year NHRA addendum.
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.

GPO Box 9848 Canberra ACT 2601 - www.health.gov.au
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Extension of time to process request
On  9 April 2025, the department wrote to you under section 15AA of the FOI Act
seeking a 14-day extension of time to allow it to process your FOI request.
On 9 April 2025, 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 1
May 2025.
On 23 April 2025, the department wrote to you under section 15AA of the FOI Act
seeking a 10-day extension of time to allow it to process your FOI request.
On 9 April 2025, 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 11
May 2025. As this date falls on a weekend, the statutory timeframe was extended to
the next business day, Monday 12 May 2025, as per the Acts Interpretation Act 1901.
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.
On 19 March 2025 you agreed to exclude documents that had been finalised and/or
published from the scope of your request. During searches, we identified a draft
version of the Schedule K – Addendum to National Health Reform.  A later and signed
version of the document is publicly available at:
www.federalfinancialrelations.gov.au/sites/federalfinancialrelations.gov.au/files20
25-2/nhra-addendum-schedule-k.pdf
As such, we have not assessed this document as part of this access request.
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.
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Decision on access
I have identified 4  documents that are relevant to your request.  The documents
comprise 3 primary documents and 1 attachment.
These documents were in the possession of the department when your request was
received.
I have decided to refuse access to 4 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 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, 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.
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

Anne-marie Boxall
Assistant Secretary
Office of Health Technology Assessment Branch
07 May 2025

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ATTACHMENT A.
SCHEDULE OF DOCUMENTS
FOI REQUEST 25-0319 LD
Document  Pages
Date
Description
Decision on
Relevant
access
provisions
of FOI Act
1
2
February 2025  Document 1
Exempt in full
s22
s34(3)
s47C
s47E(d)
s47F
2
3
January 2025  Document 2
Exempt in full
s47C
s47E(d)
2.A
2
January 2025  Document 2.A
Exempt in full
s47C
s47E(d)
3
4
January 2025  Document 3
Exempt in full
s47C
s47E(d)
s47F

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ATTACHMENT B.
REASONS FOR DECISION
FOI 25-0319 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 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. This information
has been marked ‘s22’ in the documents released to you.
Irrelevant  information  includes information that was produced when email was
transferred to PDF format. As this information is not part of the original document,
it is not relevant to your request.
4.  Section 34 - Cabinet documents
Subparagraph 34(3) of the FOI Act provides that a document is an exempt document
to the extent that it contains information the disclosure of which would reveal a
Cabinet deliberation or decision, unless the existence of the deliberation or decision
has been officially disclosed.
Paragraph 5.63 of the FOI Guidelines states that the Cabinet exemption is designed to
protect the confidentiality of the Cabinet process and to ensure that the principle of

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collective ministerial responsibility (fundamental to the Cabinet system) is not
undermined.
I have had regard to the content of the parts of the document marked ‘s34(3)’ contains
information the disclosure of which would reveal a Cabinet deliberation or decision
which has not been officially disclosed.
In considering the application of this exemption, I have undertaken consultation with
the Department of the Prime Minister and Cabinet and  have confirmed that the
relevant information remains subject to Cabinet confidentiality.
For the reasons set out above, I have decided that the document 1 marked as exempt
in full in the Schedule at Attachment A contains  some exempt information  under
section 34 of the FOI Act.
5.  Section 47C – Deliberative processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its
disclosure would disclose matter (deliberative matter) in the nature of, or relating to,
opinion, advice or recommendation obtained, prepared or recorded, or consultation
or deliberation that has taken place, in the course of, or for the purposes of, the
deliberative processes involved in the functions of an agency; or a Minister; or the
Government of the Commonwealth.
Deliberative process
Paragraph 6.54 of the FOI Guidelines states that deliberative process involves the
exercise of judgement in developing and making a selection from different options:
The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing
upon one’s course of action. In short, the deliberative processes involved in the
functions of an agency are its thinking processes – the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a
course of action.
Deliberative matter
Paragraph 6.59 of the FOI Guidelines states that ‘deliberative matter’ is a shorthand term
for ‘opinion, advice and recommendation’ and ‘consultation and deliberation’ that is
recorded or reflected in a document. There is no reason generally to limit the ordinary
meanings given to the words ‘opinion, advice or recommendation, consultation or
deliberation’.
I am satisfied that the documents marked ‘s47C’ in the schedule contain material that
meets the criteria of deliberative matter, and that this material forms part of a
deliberative process. The document/s set out the weighing up and evaluation of
competing  arguments, and/or can be characterised as the thinking process of the
department or the process of reflection upon the wisdom and expediency of a
particular proposal.

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Purely factual material
Paragraph 6.70 and 6.71 of the FOI Guidelines states that:
6.70   ‘Purely factual material’ does not extend to factual material that is an integral
part of the deliberative content and purpose of a document, or is embedded in or
intertwined with the deliberative content such that it is impractical to excise it.
6.71  Where a decision maker finds it difficult to separate the purely factual
material from the deliberative matter, both the elements may be exempt. If the two
elements can be separated, the decision maker should consider giving the applicant a
copy with deletions under s 22 to provide access to the purely factual material.
I am satisfied that factual information contained within the documents is an integral
part of the deliberative content and  is embedded in or intertwined with the
deliberative content such that it is impractical to excise.
For the reasons outlined above, I have decided that the documents marked ‘s47C’ in
the schedule are conditionally exempt from disclosure under section 47C 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.
6.  Section 47E - Documents affecting certain operations of agencies
Section 47E of the FOI Act provides that a document is conditionally exempt if its
disclosure would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or
audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Paragraph 6.84 of the FOI Guidelines states that section 47E conditionally exempts a
document where disclosure would, or could reasonably be expected to, prejudice or
have a substantial adverse effect on certain identified agency operations.
Paragraph 6.84 of the FOI Guidelines states that section 47E conditionally exempts a
document where disclosure would, or could reasonably be expected to, prejudice or
have a substantial adverse effect on certain identified agency operations.
Examples provided in paragraph 6.113 of the FOI Guidelines indicate that use of
47E(d) may be appropriate where disclosure of the information would:

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•  result in the need to make substantial changes to procedures to avoid
jeopardising the effectiveness or methods and procedures used by the agency,
and/or
•  prejudice of the ability of an agency to perform its statutory, regulatory or
public safety functions.
Paragraph 6.112 of the FOI Guidelines states that an agency’s operations may not be
substantially adversely affected if the disclosure would, or could reasonably be
expected to, lead to a change in the agency’s processes that would enable those
processes to be more efficient.
Paragraph 6.115 of the FOI Guidelines state that the predicted effect of disclosure must
bear on the department’s ‘proper and efficient’ operations, that is, the department is
undertaking its expected activities in an expected manner. Where disclosure of the
documents reveals unlawful activities or inefficiencies, this element of the conditional
exemption will not be met and the conditional exemption will not apply.
You have requested access to documents that contain information about
communications between the department and the Department of the Prime Minister
and Cabinet and state and territory governments with respect to the drafting of clause
K10 in Schedule K (Addendum to the National Health Reform Agreement: Revised
Public Hospital Funding and Health Reform Arrangements.
I am satisfied that the documents marked ‘s47E(d)’ in the schedule contain information
which, if disclosed, would or could reasonably be expected to, have a substantial and
an unreasonable effect on the department’s proper and efficient operations namely, its
communication and coordination  with  the Department of the Prime Minister and
Cabinet and state and territory governments.
I am satisfied that if the information in the documents marked s 47E(d) were disclosed
it would adversely affect the open discussion and negotiation of health policy options
and reforms between the department and the Department of the Prime Minister and
Cabinet and/or state and territory governments. Further, release of the information
could be reasonably be expected to disrupt the level of trust, coordination and/or co-
operation  between the department and the Department of the Prime Minister and
Cabinet and/or  state and territory governments  with respect to public hospital
funding and health reforms in a way that could prejudice the development of joint
policy  in relation to Revised Public Hospital Funding and Health Reform
Arrangements.
I am  therefore  satisfied that any impediment to the efficient and effective
communication  between the department, the Department of Prime Minister and
Cabinet, and Australian state/territory governments would have a substantial adverse
effect on the proper and efficient conduct of the department  in delivering public
hospital funding and health reforms for the benefit of the Australian Community.
In forming this decision, I am satisfied the s47E(d) material contained in the documents
relates to operational activities that are being undertaken in an expected and lawful
manner, and that release of this information would not reveal inefficiencies in the way
in which the department conducts those operational activities.

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For the reasons outlined above, I have decided that the documents marked ‘s47E’ in
the schedule are conditionally exempt from disclosure under section 47E 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.
7.  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 6.125 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.
Paragraph 6.132 of the FOI Guidelines states that an individual is a natural person and
does not include a corporation, trust, body politic or incorporated association. Section
47F specifically extends to the personal information of deceased persons.
I am satisfied that documents marked ‘s47F’ in the schedule include  personal
information such as names.
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 6.133 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
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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 51-52, 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 6.137 and 6.138 of the FOI Guidelines state:
6.137  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
6.138  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
The documents marked ‘s47F’ in the Schedule at Attachment A contain the names and
direct contact details of several Australian Public Service (APS) staff.
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:

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•  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 individuals would not expect the information to be placed in the public
domain, 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.
For the reasons outlined above, I have decided that the documents marked ‘s47F’ in
the schedule 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.
8.  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.

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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:
s47C - deliberative processes
•  could reasonably be expected to prejudice the deliberative processes of forming
opinion, advice and/or recommendations by creating an environment in which
there is a chilling effect on the open consideration of all options available to the
department. Any impediment to the deliberative process could adversely
impact the effectiveness of the department’s decision-making, which is against
the public interest.
•  could reasonably be expected to establish a precedent of release of deliberative
material, which could hinder the flow of suggestions, preliminary opinions,
device and/or recommendations within the department. Any impediment to
the deliberative process could reasonably be expected to adversely impact the
department’s ability to innovate, iterate and improve its policy and procedures,
which is against the public interest.

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s47E(d) – operational information
•  could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future. Any impediment to the ability of the department to
obtain and protect information is against the public interest.
•  could reasonably be expected to harm the department’s management of its
communications with the Department of the Prime Minister and Cabinet and
state and territory governments.  Any  impediment  of the ability of the
department to communicate with the Department of Prime Minister and
Cabinet and state and territory governments about health and aged care policies
that  provide for and  benefit the  health and well-being  of the Australian
Community is against the public interest.
s47F - personal privacy
•  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 you with 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, which would be contrary to the objects
of the Privacy Act 1988 and therefore 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.

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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 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.

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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

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Document Outline