FOI 40556 Statement of reasons.pdf

FOI 40556

Decision and Statement of Reasons made under the Freedom of
Information Act 1982
Decision and reason for decision of Tayla (Position Number 62213294], Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:

Mr Brett Wilson

Decision date:

15 April 2021

FOI reference number:
FOI 40556

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Wilson,
Freedom of Information Request: FOI 40556
Decision

1.
The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has identified one (1) document relevant to your request.

2.
I have made a decision to grant access to the document fal ing within the scope of your
request in full.

3.
The document that I have chosen to release in full is set out in Schedule 1. Where I have
decided to remove material considered to be irrelevant to your request, I have provided
access to an edited copy of the document, 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, Tayla (Position Number 62213294), Information Access 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 1 February 2021 you made a request for access to documents in the possession of the
Department. Your request sought access to:

…It is requested that you provide the fol owing information:

a. Copy of a document that outlines what personal and confidential medical
information about individual veterans participating in the CVC program, was
provided by DVA to Bupa Medical (GP) Pty Ltd for Bupa to complete the CVC Survey
i.e. name, address etc?, and

b. Copy of a document that outlines what personal and confidential medical
information about individual veterans participating in the CVC program, was
provided by Bupa Medical (GP) Pty Ltd to Medallia Australia Pty Ltd, to complete the
CVC Survey i.e. name, address etc?...

… it is requested that you provide a copy of the fol owing document if it exists:

a. A copy of the notice listed in the Australian Government Gazette, that approves
the guidelines that relate to the use and disclosure of health information for
Veterans in relation to the Bupa CVC Survey. Or alternatively, provide information
that the Gazette Notice does not exist?. .

… it is requested that you also provide a copy of the following if it exists:

a. A copy of the notice listed in the Australian Government Gazette, that approves
the guidelines that relate to the use and disclosure of health information for
Veterans in relation to the Bupa CVC Survey. Or alternatively, provide
information that the Gazette Notice does not exist?

6.
On 1 February 2021, you made a second request for access to documents for the following:

…It is requested that you also provide a copy of the fol owing information:

a. A copy of a legal instrument or a document that lawfully over rides Sect 95B
Requirements for Commonwealth contracts, allowing Bupa to subcontract the (CVC)
program Survey to Medallia Australia Pty Ltd (Medallia) a third party and
subcontractor…

7.
On 2 February 2021, you were advised that your requests would be processed as a single
request with the reference FOI 40556.

8.
On 1 March 2021, you were advised that the Department was required to undertake a third
party consultation in accordance with section 27 of the FOI Act. The relevant third party
2

provided submissions in relation to the documents and these submissions have been taken
into consideration while making my decision.

9.
In the same communication of 1 March 2021, the Department request further clarification
regarding the part of your request which sought access to documents or notices listed in the
Australia Government Gazette. We further advised that at this time, the Department had not
been able to identify a document of such nature at this time.

10.  On 1 March 2021, you advised that if the Department is unable to locate the document that
this is to be stated in our decision.

11.  On 1 April 2021, the Department contacted you seeking further clarification in regards to the
part of your request which sought access to:

…It is requested that you also provide a copy of the fol owing information:

a. A copy of a legal instrument or a document that lawfully over rides Sect 95B
Requirements for Commonwealth contracts, allowing Bupa to subcontract the (CVC)
program Survey to Medallia Australia Pty Ltd (Medallia) a third party and
subcontractor…

12.  On 1 April 2021 you responded to the Department advising that you did not require a copy
of the commercial contract in its entirety. In particular, you advised that:

To re clarify sub para a. above, it is requested that you supply a copy of the fol owing:
a .instrument,
b. document, or
c. source of power and authority made or given within and by the Commonwealth of
Australia, that over rides the The Privacy Act 1988 Commonwealth Sect 95B Requirements
for Commonwealth contracts, allowing Bupa a primary contractor, to subcontract the (CVC)
program Survey to Medallia Australia Pty Ltd (Medallia), a third party and subcontractor.

13.  In the same communication of 1 April 2021, the Department sought your consent to a 14 day
extension of time under s15AA of the FOI Act. In your response, you confirmed your
agreeance to this request.

14.  The Department has undertaken reasonable searches of its records and has not been able to
identify documents relevant to the fol owing parts of your request:

…It is requested that you provide the fol owing information:

3

a. Copy of a document that outlines what personal and confidential medical
information about individual veterans participating in the CVC program, was
provided by DVA to Bupa Medical (GP) Pty Ltd for Bupa to complete the CVC Survey
i.e. name, address etc?, and

b. Copy of a document that outlines what personal and confidential medical
information about individual veterans participating in the CVC program, was
provided by Bupa Medical (GP) Pty Ltd to Medallia Australia Pty Ltd, to complete the
CVC Survey i.e. name, address etc?...

… it is requested that you provide a copy of the fol owing document if it exists:

a. A copy of the notice listed in the Australian Government Gazette, that approves
the guidelines that relate to the use and disclosure of health information for
Veterans in relation to the Bupa CVC Survey. Or alternatively, provide information
that the Gazette Notice does not exist?. .

… it is requested that you also provide a copy of the following if it exists:

b.  A copy of the notice listed in the Australian Government Gazette, that approves
the guidelines that relate to the use and disclosure of health information for
Veterans in relation to the Bupa CVC Survey. Or alternatively, provide
information that the Gazette Notice does not exist?

15.  For this reason, I have made a decision to refuse access to these parts of your request under
s24A of the FOI Act as the documents cannot be found or do not exist.

16.  A decision and one (1) document which relate to the remainder of your request, as revised
on 1 April 2021, can be found enclosed.

17.  As an extension of time was applied to process your request in accordance with section
15AA of the FOI Act, a decision on your request is due by 16 April 2021.

18.  I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the Freedom of Information (Charges) Regulations 2019.

Material taken into account

19.  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 full access to the document fol ows.

20.  I have taken the following material into account in making my decision:

  the terms of your request and as revised on 1 April 2021;
4

  the types of information and documents that are in the Department’s possession;

  the content of the document that fal s within the scope of your request;

  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.

  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines);

  the views of a third party consulted by the Department under section 27; and

  the views of the subject matters experts within the Department who could be
expected to provide information and documents related to your request.

21.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

22.  Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:

(a)
al  reasonable steps have been taken to find the document; and

(b)
the agency or Minister is satisfied that the document:
  (i)  is in the agency's or Minister's possession but cannot be found; or

(ii)  does not exist.

23.  I am satisfied that al  reasonable steps have been taken to find information relevant to the
parts of your request at paragraph 14, having regard to:

•  the terms of your request;

•  the subject matter of the documents;
5

•  the current and past file management systems and the practice of orderly
destruction or removal of documents;

•  the Department’s record management systems and practices; and

•  the individuals and areas within the Department who may be able to assist with
the location of the information you seek access to.

24.  Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to your request as identified at paragraph 14.

25.  For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A of the FOI Act.

Supporting or additional information

26.  I note that for the purposes of the survey, Bupa Medical (GP) Pty Ltd utilised names,
addresses, and date of last claim, to determine active program participants, and no
confidential medical information was utilised in preparing the survey mailing list. All
documentation relating to the survey was reviewed in accordance with ethics and privacy
obligations. There is not a specific document that outlines the name, address and claim date
information that was provided to Bupa Medical (GP) Pty Ltd for Bupa to complete the
survey.

27.  I further note that a Gazette notice wasn’t ever created for the purposes of the survey. An
Opt Out letter was sent to active program participants in December 2020 advising of the
survey and data col ection process and provided the opportunity to opt out of having their
details utilised for and participating in the survey.

Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)

28.  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.

6

29.  Following your revised scope of 1 April 2021, I have prepared the documents for release by
removing all irrelevant material in accordance with section 22 of the FOI Act. The material
that has been edited for release is marked within the documents as well as at Schedule 1.

Access to documents

30.  The document released to you in accordance with the FOI Act is enclosed.

Information Publication Scheme

31.  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.

32.  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

Internal review

33.  Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.

34.  You can make your application for Internal Review in one of the fol owing ways:

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

OAIC review

7

35.  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:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx

36.  More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/

Contact us

37.  If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:

Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information

Post:
Information Law, Legal Services and Audit Branch
Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx

Yours sincerely,

Tayla (Position Number 62213294)
Information Access Officer
Information Law Section
Legal Services and Audit Branch

15 April 2021

8

FOI 40556
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).

10

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).

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:
11

(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.
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.

24A  Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non-existent

(1)  An agency or Minister may refuse a request for access to a document if:
  (a)  al reasonable steps have been taken to find the document; and

(b)  the agency or Minister is satisfied that the document:

(i)  is in the agency's or Minister's possession but cannot be found; or
12

(ii) does not exist.

Document not received as required by contract

(2)  An agency may refuse a request for access to a document if:
  (a)  in order to comply with section 6C, the agency has taken contractual measures to ensure that it
receives the document; and

(b)  the agency has not received the document; and

(c)  the agency has taken al  reasonable steps to receive the document in accordance with those
contractual measures.
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 shal :
(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).

13