FOI 34806
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Jack (Position Number 62212813), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Mr Stuart McCarthy
Decision date:
10 June 2020
FOI reference number:
FOI 34806
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr McCarthy
Freedom of Information Request: FOI 34806
Decision
1. The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has identified 18 documents (
the documents) relevant to your request.
2. I have made a decision to grant access in part to the documents.
3. The documents that I have chosen to grant access to are set out in
Schedule 1, together with
applicable exemption provisions. Where I have decided to grant access in part, I have
provided access to an edited copy of the documents, modified by deletions in accordance
with section 22(2) of the
Freedom of Information Act 1982 (Cth) (
FOI Act).
Authority to make decision
4. I, Jack (Position Number 62212813), Legal Officer, Information Law Section, am an officer
authorised by the Secretary of the Department to make decisions about access to
documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.
1
Summary
5. On 10 March 2020, you made a request for access to documents in the possession of the
Department. Your request was made in the following terms:
…On 27 February 2020, the Ex-Service Organisations Round Table (ESORT) received a
briefing on magic mushrooms spiritual healing ceremonies from opera singer Tania de
Jong. The presentation was approved by DVA Secretary Liz Cosson.[1]
Tania de Jong is a Director of Mind Medicine Australia (MMA), which describes itself as
"a charity that enables the development of regulatory-approved and research-backed
psychedelic-assisted psychotherapy for the treatment of mental il -health in Australia."
Other MMA directors include investment banker Peter Hunt, and Open Arms National
Advisory Committee (NAC) chair Jane Burns.[2]
On 12 December 2019 and in late January 2020, Jane Burns met with the Federal
Treasurer, the Prime Minister and the Minister for Health, to lobby for veterans mental
health-related project funding, in return for opposing the Royal Commission into
Veteran Suicides.
In accordance with the FOI Act, I hereby request to be provided with the fol owing
documents:
1) The MMA presentation to ESORT on or around 27 February 2020.
2) Al correspondence between MMA representatives (including directors Peter Hunt,
Tania de Jong and Jane Burns) and DVA officials (including but not limited to Liz Cosson
and Stephanie Hodson) relating to the use of psychedelic substances for the
"treatment" of mental health conditions, from 1 July 2019 to 1 March 2020…
6. A decision on your request was due by 9 April 2020.
7. On 31 March 2020, the Department requested an extension of time from you under section
15AA of the FOI Act. To date, no response has been received in relation to this request.
8. On 3 April 2020, the Department made an application to the Office of the Australian
Information Commissioner (
OAIC) for an extension of time, for a further 30 days to process
your request under section 15AB of the FOI Act. On 8 April 2020, the OAIC granted this
extension. As such, the revised due date for a decision on your request was 11 May 2020
(noting that 9 May 2020 fel on a weekend).
9. On 4 May 2020, you were advised that the Department was required to undertake a third
party consultation in accordance with sections 27 and 27A of the FOI Act. The third party’s
views have been taken into account in making my decision.
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10. As extensions of time were applied to process your request in accordance with sections
15(6) and 15AB of the FOI Act, a decision on your request was due by 8 June 2020.
11. In accordance with section 15AC of the FOI Act, the principal officer of the Department is
taken to have made a decision personally refusing to give access to the documents on the
last day of the initial decision period. Even where a decision has not been issued within the
prescribed timeframe, the Department retains an obligation to process and finalise the FOI
request. I would like to apologise for the delay in issuing this decision to you and any
inconvenience it may have caused.
12. As a decision on your request was not made within the timeframe as prescribed in section
15(5)(b) of the FOI Act, Regulation 7(2) of the
Freedom of Information (Charges) Regulations
2019 prescribed that no charge is payable.
Material taken into account
13. In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant part access to the documents fol ows.
the terms of your request dated 10 March 2020;
the types of information and documents that are in the Department’s possession;
the content of the document that fal within the scope of your request;
consultation with other Department Officers in relation to the terms of your request;
the views of third parties consulted by the Department under sections 27 and 27A of
the FOI Act.
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
my decision:
- Section 11B Public interest exemption – factors
- Section 15 Request for Access
- Section 22 Access to edited copies with exempt or irrelevant material deleted
- Section 47E Public interest conditional exemptions--certain operations of agencies
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the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines).
14. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
15. I have decided to
grant access to the documents within the scope of your request, subject to
the fol owing exemptions in accordance with the FOI Act:
Public interest conditional exemptions--certain operations of agencies (section 47E)
16. I have found that parts of the documents which are listed as exempt in accordance with this
provision in
Schedule 1, contains material that if released, could have a substantial adverse
effect on the management of personnel by the Department (section 47E(c) of the FOI Act)
and the proper and efficient conduct of the operations of the Department (section 47E(d) of
the FOI Act).
17. Sections 47E(c) and 47E(d) of the FOI Act provides that a document is conditional y exempt if
its disclosure would, or could reasonably be expected to, do any of the fol owing:
(a)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by a
n agency;
(b)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an
agency.
18. I have redacted the surnames of non-Senior Executive staff members within the documents
to give effect to this conditional exemption, other than the names of those non-Senior
Executive staff members whose contacts details you already have or where they are already
known to you.
19. The Department’s role is to provide support and information to veterans and their families,
Australian Defence Force personnel and other categories of people. The services and
support which the Department provides include pensions and compensation, health care,
rehabilitation and counsel ing services, amongst other things. It is important that the
Department is able to continue to provide these services and to carry out the other
legislative functions and administrative and operational processes required of them. Certain
processes and specific channels of communication have been implemented which enable
4
clients and other relevant stakeholders to contact the Department in a way that ensures al
Departmental resources are managed as efficiently as possible.
20. Release of the exempt information in the circumstances would adversely affect the
Department as the established lines of communication could then be bypassed. It is
reasonable to expect that this would disrupt and adversely affect the operations of the
Department.
21. Further, the release of this information could have a substantial adverse effect on the
management or assessment of personnel as well as an adverse effect on the proper and
efficient conduct of the operations of the agency including the inability of the Department to
retain staff or effectively manage the wel being and safety of our staff. Relevantly, some
staff have been targeted, insulted or harassed based on disclosure of their details. This
presents chal enges in managing the welfare of staff and can affect the ongoing
management and retention of personnel by the Department. Consequently, in these
circumstances, it would not be in the public interest to release this information.
22. Accordingly, I have decided that parts of the documents listed as exempt in accordance with
this provision in
Schedule 1, meet the criteria for this conditional exemption. Where a
document is assessed as conditional y exempt, access must be given subject to the public
interest test in accordance with section 11A(5) of the FOI Act.
23. Where the document contains information exempt under section 47E of the FOI Act, an
edited copy has been prepared (pursuant to section 22 of the FOI Act) with these details
redacted.
Application of the public interest test:
24. Section 11A(5) provides that an agency 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 would, on balance, be contrary to the public interest.
25. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act.
26. I also considered the fol owing factors which do not favour disclosure:
5
(a)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the management or assessment of personnel by the Commonwealth, by
Norfolk Island or by an
agency;
(b)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the proper and efficient conduct of the operations of a
n agency;
(d)
disclosure could reasonably be expected to prejudice the management function of
an agency.
27. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
28. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)
29. The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.
30. As explained above, some of the documents subject to your request contain exempt
information. On this basis, I have prepared the documents for release by removing that
exempt material in accordance with section 22 of the FOI Act.
31. I have also deleted the name of the FOI processing officer from the top of each document, as
irrelevant and out of scope of your request in accordance with section 22 of the FOI Act. The
officer’s name did not form part of the original documents and is only identified as the
officer had to prepare the documents in response to this FOI request.
32. The material that has been edited for release is marked within the documents as well as at
Schedule 1.
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Access to documents
33. The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
34. The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.
35. I am of the view that details of your request
should be made available on the Department’s
FOI Disclosure Log. As such, details of your request will be published on the Department’s
FOI Disclosure Log which can be accessed at
http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.
Your rights of review
36. If you are dissatisfied with my decision you may apply for Information Commissioner Review
of the decision through the Office of the Australian Information Commissioner (
OAIC). In
accordance with section 54E(b) of the FOI Act, internal review is not available as the
Department did not finalise your FOI request within the prescribed statutory timeframe.
OAIC review
37. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Email:
xxxxxxxxx@xxxx.xxx.xx
In person: Level 3, 175 Pitt Street, Sydney NSW 2000
38. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
http://oaic.gov.au/freedom-of-information/foi-resources/freedom-
of-information-fact-sheets/foi-factsheet-12-your-review-rights
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Contact us
39. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely,
Jack (Position Number 62212813)
Legal Officer
Information Law Section
Legal Services and Audit Branch
10 June 2020
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FOI 34806
Schedule 1
Schedule of documents
Applicant:
Mr Stuart McCarthy
Decision date:
10 June 2020
FOI reference number:
FOI 34806
9
Document Date of document
Document description
Page Decision Exemption
bundle
number
provision
reference
1
Various
Correspondence Bundle
1 Part
s 22, s 47E
Access
2
2 October 2019 News Article – Australian Financial Review
6 Full
Access
3
Undated
Conference invitation and paper – Mind Medicine
7 Full
Australia
Access
4
December 2019 Presentation –
A New Treatment Paradigm for
12 Full
Mental Il ness in Australia: Medicinal Psilocybin and
Access
MDMA Psychotherapy
5
Various
Correspondence
52 Part
s 22
Access
6
Undated
Conference invitation and paper – Mind Medicine
54 Full
Australia
Access
7
Various
Correspondence Bundle
69 Part
s 22, s 47E
Access
8
2 October 2019 News Article – Australian Financial Review
72 Full
Access
9
Undated
Conference invitation and paper – Mind Medicine
73 Full
Australia
Access
10
December 2019 Presentation –
A New Treatment Paradigm for
74 Full
Mental Il ness in Australia: Medicinal Psilocybin and
Access
MDMA Psychotherapy
11
Undated
Paper – Mind Medicine Australia
114 Full
Access
12
7 January 2020 Draft Paper – Mind Medicine Australia
118 Full
Access
13
23 January 2020 Email – Ms de Jong to Ms Cosson
124 Part
S 22
Access
14
7 January 2020 Draft Paper – Mind Medicine Australia
126 Full
Access
15
Undated
Conference invitation and paper – Mind Medicine
132 Full
Australia
Access
16
December 2019 Presentation –
A New Treatment Paradigm for
134 Full
Mental Il ness in Australia: Medicinal Psilocybin and
Access
MDMA Psychotherapy
17
Undated
Paper – Mind Medicine Australia
174 Full
Access
18
Various
Correspondence Bundle
178 Part
s 22, s 47E
Access
10
FOI 34806
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the fol owing:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
11
Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
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.
Note 1: Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
11B Public interest exemptions — factors
Scope
(1)
This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).
(2)
This section does not limit subsection 11A(5).
Factors favouring access
(3)
Factors favouring access to the document in the public interest include whether access to
the document would do any of the fol owing:
(a)
promote the objects of this Act (including al 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.
Irrelevant factors
(4)
The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(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.
Guidelines
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(5)
In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
13
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
26
Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
47E Public interest conditional exemptions—certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
14
(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, by Norfolk Island or by an agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
15
Document Outline