Notice of Decision FOI 3275.pdf

Department Reference: FOI 3275

Ms Raphaella Crosby
via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Ms Crosby

NOTICE OF DECISION

Thank you for your request to the Department of Health on 26 October 2021 seeking access
under the Freedom of Information Act 1982 (Cth) (the FOI Act) to the following:

A list of all applications for MRFF funding over the past 5 years for migraine, including
whether they were successful or unsuccessful.

FOI decision

I am authorised under subsection 23(1) of the FOI Act to make decisions in relation to
Freedom of Information (FOI) requests. I am writing to notify you of my decision in
response to your request.

Appropriate steps have been taken to find the documents you requested, including
searches of departmental file management systems. In accordance with section 17 of the
FOI Act, a report was generated from grant application data held by the department which
contains the information relevant to the scope of your request.

The report identifies four applications, all unsuccessful, that fall within the scope of your
request. However, I have decided to refuse access to the report containing the data you
requested on the basis that it is exempt from disclosure under sections 45, 47E and 47G of
the FOI Act. The reasons for my decision are set out further at Attachment A.

Third Party Consultation

You were informed on 19 November 2021 that consultation with third parties would be
necessary. I took the submissions of the third parties into consideration when making my
decision.

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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FOI review rights

If you are dissatisfied with my decision, you may apply for a review.

Internal review

Under section 54 of the FOI Act, you may apply for internal review of this decision.
In accordance with section 54B of the FOI Act, an application for internal review must be
made in writing within 30 days after the day you are notified of this decision (or such
further period as the department allows). To assist in the internal review process, please
provide reasons you consider the review of my decision is necessary.

The internal review will be carried out by another officer of this department within 30 days
of receipt of your application.

An application for an internal review should be addressed to:
Email:
xxx@xxxxxx.xxx.xx
Mail:
FOI Unit (MDP 516)


Department of Health


GPO Box 9848


CANBERRA ACT 2601

Information Commissioner review

Alternatively, 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 (IC).

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 IC 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 action taken by the department, you may also make a complaint.

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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 IC

Information about making a complaint to the IC 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/

Relevant provisions of 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/Details/C2021C00382

Contacts

If you require clarification of any of the matters discussed in this letter you should contact
the department’s Freedom of Information Unit at xxx@xxxxxx.xxx.xx.

Yours sincerely

Masha Somi
Chief Executive Officer
Health and Medical Research Office

14 December 2021

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ATTACHMENT A
REASONS FOR DECSION – FOI 3275

Material taken into account

In making my decision, I had regard to the following:
•  the terms of your request
•  the content of the documents sought
•  advice from departmental officers with responsibility for matters relating to the
documents sought
•  the relevant provisions of the FOI Act, and
•  guidelines issued by the OAIC under section 93A of the FOI Act (the
FOI Guidelines).

Finding of facts and reasons for decision

My findings of fact and reasons for deciding to exempt the relevant document are set out
below.

Section 45 – Materials obtained in confidence

Section 45 of the FOI Act provides that a document is exempt if ‘its disclosure under this
Act would found an action, by a person (other than an agency or the Commonwealth), for
breach of confidence.’

Paragraph 5.155 of the FOI Guidelines states:

The exemption is available where a person who provided the confidential
information would be able to bring an action under the general law for breach of
confidence to prevent disclosure, or to seek compensation for loss or damage arising
from disclosure.

Under paragraph 5.195 of the FOI Guidelines, to found an action for breach of confidence,
the following five criteria must be satisfied in relation to the information:
•  the information must be specifically identified
•  the information must have the necessary quality of confidentiality
•  the information must have been communicated and received on the basis of a
mutual understanding of confidence
•  the information must have been disclosed or threatened to be disclosed, without
authority, and
•  unauthorised disclosure of the information has or will cause detriment.

Addressing the above criteria, I am satisfied that the document created by the department
for the purposes of responding to your request:
•  contains information that is specifically identified and confidential in nature

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•  that was communicated on the basis that it would remain confidential and not be
shared with third parties
•  in circumstances where there is a mutual understanding of confidence between the
department and the third parties concerned
•  the relevant third parties have not authorised disclosure of the relevant information,
and
•  disclosure will cause detriment to the third parties.

I refer you to section 12.2 of the Grant Opportunity Guidelines under the heading ‘How we
use your information’. In particular, the application material, including assessment
committee discussion of application material, is provided to and received by the National
Health and Medical Research Council (NHMRC) in confidence. Applications are then
considered in a confidential peer review process.

As noted above, the relevant third parties have not consented to the confidential
information in their applications being disclosed to the public. I am satisfied that doing so
will cause detriment to those third parties, the NHMRC and the department. I consider that
disclosure of this information would also undermine industry confidence in the
confidentiality of the third parties’ interactions with the NHMRC and the department.

Disclosure of the relevant document would be inconsistent with the department’s
confidentiality obligations and would found an action for breach of confidence. The
document is therefore exempt from disclosure in full under subsection 31B(a) and
section 45 of the FOI Act. Section 45 of the FOI Act is not a conditional exemption and is not
subject to an application of the public interest test under subsection 11A(5) of the FOI Act.

Section 47G – business information

Paragraph 47G(1)(a) of the FOI Act relevantly provides that a document may be
conditionally exempt if it discloses information concerning the business, commercial or
financial affairs of an organisation or undertaking, where the disclosure:
•  would, or could reasonably be expected to, unreasonably affect … adversely … those
lawful affairs, or
•  could reasonably be expected to prejudice the supply of information to the
Commonwealth, Norfolk Island or an agency.

The applications contain information relating to the business affairs of a third party.
Release of this information could reasonably be expected to unreasonably affect that third
party’s lawful business affairs.

Paragraph 5.16 of the FOI Guidelines explains that the test ‘would, or could reasonably be
expected’ requires the decision maker to assess the likelihood of the predicted or forecast
event, effect or damage occurring after disclosure of a document. The word ‘could’ is less
stringent than ‘would’ and requires analysis of the reasonable expectation rather than
certainty of an event, effect or damage occurring, or could occur in the future.

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The FOI Guidelines further explain that the term ‘unreasonably’ implies a need to balance
public and private interest factors to decide whether disclosure is unreasonable
(paragraph 6.187). The test of reasonableness applies not to the claim of harm but to the
objective assessment of the expected adverse effect (paragraph 6.188).

Test of reasonableness

In determining whether disclosure of this information would, or could reasonably be
expected to, adversely affect the lawful business affairs of the third party, I have had regard
to the following factors:
•  the extent to which the information is well known
•  whether the organisation or undertaking is known to be associated with the matters
dealt with in the document
•  the availability of the information from publicly accessible sources, and
•  any other matters I consider relevant.

Against these four factors, I found that:
•  the business information is not well known
•  the third parties are not known to be associated with the matters dealt with in the
document, and
•  the information about the third parties is not readily accessible from publicly
available sources.

The operation of the business information exemption depends on the effect of disclosure,
rather than the precise nature of the information itself. In this case, I am satisfied that the
effect of disclosing this information would have an adverse effect on the business affairs of
the third party. On this basis, it is my view this document is conditionally exempt in full
under paragraph 47G(1)(a) of the FOI Act.

Public interest test

As section 47G of the FOI Act is a conditional exemption, I have considered whether release
of the relevant material would be contrary to the public interest.

Under subsection 11B(3) of the FOI Act, when weighing up the public interest factors in
favour of disclosure, I have taken into account the extent to which disclosure would:
•  promote the objects of the FOI Act by providing the Australian community with
access to information held by the Commonwealth Government
•  inform debate on matters of public importance, and
•  promote effective oversight of public expenditure.

However, I have weighed up the above factors against the following factors, indicating
access would be contrary to the public interest:
•  disclosure of the information is likely to cause significant harm to the business
interests of the third party, including their commercial interests and dealings.

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•  It is in the public interest to protect commercially sensitive information, which was
provided to the Commonwealth by the third party on the basis that it would not be
made publicly available.
•  the business information within the document is not in the public domain and is not
available from publicly accessible sources.
•  as the information is not widely available, the third party who owns the information
would have a reasonable expectation that their confidential business information
would not be disseminated to the public without authorisation.

I confirm I have not had regard to any of the irrelevant factors under subsection 11B(4) (as
referenced above) of the FOI Act.

On balance, I consider the public interest is more heavily weighted toward upholding the
confidentiality of the third party’s business information and in ensuring their competitive
commercial activities are not compromised or prejudiced in any way. I am satisfied it is in
the public interest to withhold the exempt material. This document is therefore exempt in
full under paragraph 47G(1)(a) and paragraph 31B(b) of the FOI Act.

Section 47E(d) – certain operations of agencies

Subsection 47E(d) of the FOI Act provides that a document is conditionally exempt if its
disclosure would, or could reasonably be expected to, have a substantial adverse effect on
the proper and efficient conduct of the operations of an agency.

Paragraph 6.120 and 6.123 of the FOI Guidelines relevantly provide as follows:

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.

The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that
is, the agency is undertaking it expected activities in an expected manner. Where
disclosure of the document reveals unlawful activities or inefficiencies, this element
of the conditional exemption will not be met and the conditional exemption will not
apply.

As described above, in relation to the test ‘would or could reasonably be expected to’,
paragraphs 5.16 to 5.18 of the FOI Guidelines provide as follows:

The test requires the decision maker to assess the likelihood of the predicted or
forecast event, effect or damage occurring after disclosure of a document.

The use of the word ‘could’ in this qualification is less stringent than ‘would’, and
requires analysis of the reasonable expectation rather than certainty of an event,
effect or damage occurring. It may be a reasonable expectation that an effect has
occurred, is presently occurring, or could occur in the future.

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The mere risk, possibility or chance of prejudice does not qualify as a reasonable
expectation. There must, based on reasonable grounds, be at least a real, significant
or material possibility of prejudice.

Paragraph 5.20 of the FOI Guidelines provides the term ‘substantial adverse effect’ broadly
means:

… an adverse effect which is sufficiently serious or significant to cause concern to a
properly concerned reasonable person’. The word ‘substantial’, taken in the context
of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the
circumstances, real or of substance and not insubstantial or nominal.

The document created for the purposes of processing your request falls under the
department’s Health and Medical Research Office Branch (the Branch), which has policy
responsibility, on behalf of the Minister for Health and Aged Care, for Commonwealth
health and medical research initiatives to improve patient care, improve the efficiency and
effectiveness of the health system, and boost economic growth. This includes the
implementation and operation of the Medical Research Future Fund (MRFF), the
Biomedical Translation Fund and input into Whole-of-Government initiatives to stimulate
science and innovation and resulting research translation and commercialisation to
improve health and drive economic growth.

The Branch monitors developments, discoveries and new technologies emerging from
health and medical research and collaborates across government portfolios, including with
the NHMRC, the Department of Industry, Science, Energy and Resources, AusIndustry, the
Department of Education, and stakeholders to promote knowledge exchange and
translation and evidence-based policy development.

Disclosure of the information in the document can reasonably be expected to have a
substantial adverse effect on the proper and efficient conduct of the Branch and the
important work it does in the health and medical research space, and of the department
more broadly.

Further, the proper and efficient conduct of the NHMRC granting process relies on the
applicant’s and assessor’s trust in the robustness and integrity of the granting process. To
disclose information that was submitted on the understanding of mutual confidentiality
has the potential to destroy or diminish the creditability and competitiveness of the
NHMRC peer review, assessment and funding outcomes. It would also undermine public
and research sector confidence in the NHMRC granting process.

A lack of confidence in the integrity of NHMRC processes would reasonably be expected to
dissuade researchers from becoming future peer reviewers and have a flow on effect on the
attracting of high quality grant applications. On the above basis, I am satisfied it would be
the relevant information is conditionally exempt under subsection 47E(d) of the FOI Act.

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Public Interest Test

The exemption in subsection 47E(d) of the FOI Act is a conditional exemption. Pursuant to
subsection 11A(5) of the FOI Act, I have applied the public interest test to the document
identified as below.

When weighing up the public interest factors in favour of disclosure, I have taken into
account the extent to which disclosure would:
•  promote the objects of the FOI Act by providing the Australian community with
access to information held by the Commonwealth Government
•  inform debate on matters of public importance, and
•  promote effective oversight of public expenditure.

However, I have weighed up the above factors against the following factors, indicating
access would be contrary to the public interest:
•  the interest in preserving the proper and efficient operations of the Branch and the
NHMRC
•  the information in the document is not publicly known and is not available from
public sources
•  disclosure could compromise the department’s and NHMRC’s ongoing consultation
with stakeholders
•  disclosure could reasonably be expected to prejudice the department’s and
NHMRC’s ability to obtain contain confidential information, and
•  disclosure could reasonably be expected to prejudice the department’s and
NHMRC’s ability to obtain similar information in the future.

I confirm I have not had regard to any of the irrelevant factors under subsection 11B(4) of
the FOI Act.

I am satisfied the public interest factors against disclosure outweigh those in favour of
disclosure. Giving access to the information at this time would, on balance, be contrary to
the public interest. The information in the document identified is therefore exempt under
subsection 31B(b) and subsection 47E(d) of the FOI Act.