Department Reference: FOI 2245 IR
J M
Via emai
l : xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear J M
NOTICE OF DECISION – INTERNAL REVIEW
I refer to your correspondence of 6 May 2021 requesting an internal review of
the decision of the Department of Health (the department) in relation to your
request of 8 February 2021 for access under the
Freedom of Information Act 1982
(the FOI Act) to the following documents:
ALL communications pertinent to this request [FOI 2033]. This includes, but is not
limited to: internal/external messages & emails, transcripts, phone conversations, etc.
I am writing to notify you of my decision in response to your request for
internal review.
I am authorised under subsection 23(1) of the FOI Act to make decisions in
relation to freedom of information (FOI) requests, including decisions on
applications for internal review and decisions to allow further time to make
such an application.
The decision under review
The primary decision identified fifteen documents as falling within the scope
of your request. The primary decision maker decided to:
grant access to three documents in full
grant access to ten documents in part, subject to the deletion of
irrelevant material, and
grant access to two documents in part, subject to the deletion of
irrelevant and exempt material.
Freedom of Information Unit (MDP 516) GPO Box 9848 Canberra ACT 2601
Telephone: (02) 6289 1666 ABN: 83 605 426 759
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Please note that the Schedule of Documents attached to the primary decision
indicated that section 22 of the FOI Act applied to page 1 of documents 3 and
9 whereas it should have indicated that section 22 of the FOI Act was applied
to pages 1 and 2 of each of those documents. I have corrected this in the
Schedule attached to this letter.
Your submission
You provided the following submission to support your request for the
internal review:
I am writing to request an internal review of Department of Health's handling of my
FOI request 'aggregate report of COVID-19 Co-morbidities'.
My request has been avoided in its entirety, furthermore, an outcome to an unrelated
FOIA request was coupled along with my request - in affect rendering my request
unanswered and effectively was avoided.
I am unhappy with my response on the grounds that while looking through liaising
material, it’s clear that not a single attempt had been made to fulfil my
inquiry/gather the relevant documents and therefore believe the response given was
unacceptable and the conduct of the officers pertinent to my request acted with
utmost disregard to the intentions of FOIA responsibilities.
It is clear that my request was not fulfilled, nor was it in any way, shape or form
investigated to the extent that the mission of the FOIA requires.
A full history of my FOI request and all correspondence is available on the Internet at
this address:
https://www.righttoknow.org.au/request/aggregate_report_of_covid_19_co
Extension of time for applying for an internal review
Pursuant to section 54B of the FOI Act, an application for internal review
must be made within 30 days after the day the decision is notified to the
applicant or such further period as the agency allows.
As you were notified of the primary decision on 10 March 2021, the statutory
period for applying for an internal review expired on 9 April 2021.
The Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the Guidelines) provide at paragraph 9.121:
The FOI Act does not specify any criteria that an agency must consider. Agencies are
encouraged to adopt a liberal approach and grant an extension unless there is a
special reason not to do so. It may, for example, be appropriate to refuse an extension
if a long time has elapsed since the agency decision was made, the agency would
encounter administrative difficulty or prejudice in undertaking a review after that
delay, and the applicant has not satisfactorily explained the reason for the delay.
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There may be no benefit in extending the time for applying for review of an access
grant decision, for example, if the documents in question have already been released.
According to the Guidelines at paragraph 9.24, an applicant who is refused an
extension of time to make an internal review request may make a fresh FOI
request for the documents that were subject to the earlier FOI request and
decision.
Taking each of these factors into account, I have decided to extend the 30 day
statutory period for making a request for an internal review of the
department’s initial decision.
Decision
In making a fresh decision on internal review, I have considered the same
documents identified by the primary decision maker as falling within the
scope of your request. I have also identified a further two documents,
documents 16 and 17, as falling within the scope of your request.
Under section 54C of the FOI Act, I have decided to vary the department’s
primary decision of 9 March 2021. Specifically, I have found that there are
17 documents within the scope of your request and I have decided to:
grant access to six documents in their entirety
grant access to nine documents subject to the deletion of irrelevant
material, and
grant access to two documents subject to the deletion of both irrelevant
and exempt material.
My decision varies the primary decision by:
finding that the two additional documents 16 and 17 are in scope of the
request and that they should be released in full, and
granting access in full to document 15, which was previously released
to you with deletion of a departmental officer’s first name.
My reason for granting access to document 15 in its entirety is that the
document is an email from the department to you, and the information in the
document, including the officer’s first name, has already been disclosed to
you.
The Schedule of Documents at Attachment A provides a description of each
document within the scope of your request, and sets out the access decision
and statutory provisions applied in both the primary decision and in this
decision.
The reasons for my decision are set out at Attachment B.
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Further released information
Documents 15, 16 and 17 are enclosed with this decision.
FOI review rights
If you are dissatisfied with my decision, under section 54L of the FOI Act, you
may apply to the Office of the Australian Information Commissioner (OAIC)
for review of my decision by the Information Commissioner.
In accordance with subsection 54S(1) of the FOI Act, an IC review application
in relation to a decision covered by subsection 54L(2) (access refusal
decisions) must be made in writing within 60 days after the day you are
notified of this decision (if you do not request an internal review).
More information about Information Commissioner review is available on the
OAIC website at
: https://www.oaic.gov.au/freedom-of-
information/reviews/
The OAIC can be contacted by:
Email:
xxxxxxxxx@xxxx.xxx.xx
Phone:
1300 363 992
Complaints
If you are dissatisfied with actions taken by the department, you may also make
a complaint.
Complaint 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:
https://www.health.gov.au/about-us/contact-us/complaints Complaint to the Information Commissioner
Information about making a complaint to the Information Commissioner
about action taken by the department is available on the OAIC website:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint/ Publication
Section 11C of the FOI Act requires the department to publish on its
disclosure log documents released to an FOI applicant. There are some
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exceptions to this rule. I have decided not to publish, on the department’s
disclosure log, the additional information released as a result of this internal
review decision because it is personal information and it would be
unreasonable to publish it.
Relevant provisions under the FOI Act
The FOI Act, including the provisions referred to in this letter, can be accessed
from the Federal Register of Legislation website:
https://www.legislation.gov.au/Series/C2004A02562. Contacts
If you require clarification of any of the matters discussed in this letter, you
should contact the Freedom of Information Unit on (02) 6289 1666 or at
xxx@xxxxxx.xxx.xx. Yours sincerely
Celia Street
First Assistant Secretary
Office of Health Protection & Response
9 June 2021
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ATTACHMENT A
SCHEDULE OF DOCUMENTS
Doc
Date
Number
Description
Primary
Primary
Internal
Internal
no.
of pages
access
decision
review
review
decision 1
exemptions
access
exemptions
decision2
1
19.10.2020 1
FOI Unit email to the RI
Section 22 –
RI
Section 22 –
Executive Officer
page 1 (part)
page 1 (part)
(EO), Health
Emergency
Management Branch
2
20.10.2020 1
Email to the EO
RI
Section 22 –
RI
Section 22 –
Health Emergency
page 1 (part)
page 1 (part)
Management Branch
3
20.10.2020 2
Email to the EO
REI
Section 22 –
REI
Section 22 –
Health Emergency
pages 1 & 2
pages 1 & 2
Management Branch
(part)
(part)
Section 47F –
Section 47F –
pages 1 & 2
page 1 & 2
(part)
(part)
4
20.10.2020 1
Email to the EO
REI
Section 22 –
REI
Section 22 –
Health Emergency
page 1 (part)
page 1 (part)
Management Branch
Section 47F –
Section 47F –
page 1 (part)
page 1 (part)
5
20.10.2020 2
Email between the
RI
Section 22 –
RI
Section 22 –
FOI Unit and the
pages 1 & 2
pages 1 & 2
EO, Health
(part)
(part)
Emergency
Management Branch
6
20.10.2020 4
Email to the
R
R
applicant
acknowledging
receipt of the FOI
request
1 R = Release, RI = Release with irrelevant information removed, REI = Release with exempt
and irrelevant information removed.
2 As above.
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Doc
Date
Number
Description
Primary
Primary
Internal
Internal
no.
of pages
access
decision
review
review
decision 1
exemptions
access
exemptions
decision2
7
21.10.2020 4
Email from the FOI
RI
Section 22 –
RI
Section 22 –
Unit
page 1 (part)
page 1 (part)
8
21.10.2020 4
Email
RI
Section 22 –
RI
Section 22 –
pages 1 & 2
pages 1 & 2
(part)
(part)
9
21.10.2020 3
Email
RI
Section 22 –
RI
Section 22 on
pages 1 & 2
pages 1 & 2
(part)
(part)
10
27.10.2020 2
FOI Unit email - FOI RI
Section 22 –
RI
Section 22 –
Request Received
pages 1 & 2
pages 1 & 2
(part)
(part)
FOI Unit email to the R
R
applicant enclosing a
11
06.11.2020 1
Notice of Decision
12
09.11.2020 2
Email from the
R
R
applicant to the FOI
Unit
13
10.11.2020 3
FOI Unit email
RI
Section 22 –
RI
Section 22 –
page 1 (part)
page 1 (part)
14
10.11.2020 3
FOI Unit email
RI
Section 22 –
RI
Section 22 –
page 1 (part)
page 1 (part)
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Doc
Date
Number
Description
Primary
Primary
Internal
Internal
no.
of pages
access
decision
review
review
decision 1
exemptions
access
exemptions
decision2
15
10.11.2020 3
FOI Unit email to the RI
Section 22 –
R
applicant
page 1 (part)
ADDITIONAL DOCUMENTS
Doc
Date
Number
Description
Internal review
no.
of pages
access decision3
16
13.10.2020
2
Applicant’s email – FOI Request
R
17
30.10.2020
3
Notice of Decision attached to Document 11 R
3 R = Release.
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ATTACHMENT B
REASONS FOR DECISION – IR 2245
Material taken into account
In making my decision, I have had regard to the following:
the scope of your request
the content of the documents identified as falling within scope of your
request
the initial decision and reasons for decision
your request for internal review and your submission
advice from departmental officers with responsibility for matters
relating to the documents sought
the relevant provisions of the FOI Act, and
the Guidelines issued by the Australian Information Commissioner
under section 93A of the FOI Act (the Guidelines).
Finding of facts and reasons for decision
My findings of fact and reasons for deciding that the sections of the FOI Act
identified in the Schedule of Documents at Attachment A apply to the
relevant documents are set out below.
Section 47F – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if
its disclosure under the FOI Act would involve the unreasonable disclosure of
personal information about any person.
Documents 3 and 4 contain the names of individuals. Paragraph 6.130 of the
Guidelines relevantly provides that this information can be considered to be
personal information. I am satisfied that the information is personal
information for the purpose of the FOI Act. I am also satisfied that, given the
context in which they appear in the documents, the names would convey or
say something about the relevant individuals.
Given the circumstances in which the information was obtained and the
likelihood that the relevant individuals would not wish to have their names
disclosed without consent, I have determined that it would be unreasonable
to disclose the individuals’ names and that this information is conditionally
exempt under section 47F of the FOI Act.
Section 47F is a conditional exemption. Subsection 11A(5) of the FOI Act
provides that an agency is required to give access to a conditionally exempt
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document at a particular time unless access to the document at that time
would, on balance, be contrary to the public interest.
When weighing up the public interest factors in favour of disclosure, I have
taken into account the extent to which disclosure would:
promote the objectives of the FOI Act, and
inform the public on matters of interest.
I have weighed up the above factors against the following factors against
disclosure:
disclosure could reasonably be expected to prejudice the protection of
the relevant individuals’ right to privacy
disclosure would adversely harm the interests of the relevant
individuals
disclosure would not add any substance to the information being
released, and
disclosure would not enhance accountability or transparency or
promote oversight of the department's personnel management and
assessment activities.
I have determined that, on balance, disclosure of the names in the documents
would be contrary to the public interest. The parts of documents 3 and 4 that
contain the names of the individuals are exempt from disclosure under
section 47F of the FOI Act.
Section 22 - Deletion of exempt and irrelevant material
Section 22 of the FOI Act requires an agency to prepare and provide an
applicant with an edited copy of a document with irrelevant material deleted
where it is reasonably practicable to delete that information.
The documents contain the names and contact details of the department’s
employees below Senior Executive Service level. As outlined, in the
department’s email of 18 February 2021 to you acknowledging receipt of your
FOI request, this material is considered to be irrelevant to the scope of your
request.
Document 4 also contains information that is not within the scope of your
request and is therefore irrelevant.
I note that the primary decision maker caused the irrelevant and exempt
material in the documents to be deleted from the documents before release. I
agree with the decision to delete the information.
