Department Reference: FOI 3451
Concerned Citizen
via emai
l: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Sir or Madam
NOTICE OF DECISION
I refer to your request to the Department of Health on 8 December 2021 seeking
access under the
Freedom of Information Act 1982 (Cth) (the FOI Act) to the following:
Please provide documents relating to the meeting between the Minister for Health and
Apple’s Global Health Lead on the 21st of May 2020.
Please provide:
-
any emails sent from the office of the Minister to Apple or from Apple to the
office of the Minister to arrange the meeting or after the meeting,
-
any attachments,
-
any agenda,
-
any notes taken during the meeting
-
any documents referenced in the meeting.
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.
I have identified four documents falling within the scope of your request (see
Attachment A). I have decided to grant you partial access to all four documents with
exempt and irrelevant material removed. My reasons for this decision are set out
further at Attachment B.
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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Third Party Consultation On 21 December 2021, the department informed you that consultation with a third
party would be necessary. My decision on access is consistent with the submissions
received by the third party.
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
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Complaints
If you are dissatisfied with action 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 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/C2022C00036
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
Joanne Tester
[signed electronically 31 January 2022]
Joanne Tester
Chief of Staff
Office of the Hon Greg Hunt MP
Minister for Health and Aged Care
31 January 2022
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ATTACHMENT A
SCHEDULE OF DOCUMENTS – FOI 3451
Document
Date
Number
Description
Decision
Relevant FOI Act
No.
of pages
on access1
provisions
1
18 May
2
Email
REI
section 22 – part
2020
correspondence
section 47F – part
2
21 May
1
Meeting Invite
RI
section 22 -part
2020
3
21 May
9
Email
REI
section 22 – part
2020
correspondence
section 47F – part
4
21 May
3
Ministerial Brief
REI
section 22 – part
2020
section 47C – part
section 47F – part
1 REI = Release with exempt and irrelevant material removed, RI = Release with irrelevant material
removed.
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ATTACHMENT B
REASONS FOR DECISION – FOI 3451
Material taken into account
In making my decision, I had regard to the following:
the scope of your request
the content of the documents sought
advice from departmental officers with responsibility for matters relating to
the documents sought
submissions provided by the third party
the relevant provisions of the FOI Act, and
guidelines issued by the OAIC under section 93A of the FOI Act (the
FOI Guidelines).
My reasons for applying the identified exemptions are set out below.
Section 22 – Deletion of irrelevant and/or exempt material
Section 22 of the FOI Act applies to documents containing exempt material
(subparagraph 22(1)(a)(i)) and irrelevant information (subparagraph 22(1)(a)(ii)) and
allows an agency to delete such material from a document.
I have deleted irrelevant information from Documents 1 to 4 in accordance with the
department’s policy advised to you on 9 December 2021. Irrelevant material deleted
from those documents include Commonwealth employee names and contact details
below Senior Executive Service (SES) level, the direct and mobile numbers of SES
officers, dial-in details for meetings, and material that falls outside the timeframe of
your request.
I have also deleted exempt material from the documents as set out in the Schedule.
The basis for my decision in relation to the exemptions applied to the documents is
set out below.
Section 47C – Deliberative matter Subsection 47C(1) of the FOI Act conditionally exempts a document if its disclosure
would reveal 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.
Deliberative processes
Paragraphs 6.58 to 6.59 of the FOI Guidelines provide that a deliberative process
involves the exercise of judgment in developing and making a selection from
different options, and generally refers to the process of weighing up or evaluating
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competing arguments or considerations that may have a bearing upon a course of
action. It has been articulated as the ’thinking process’ of an agency.
Do the documents contain deliberative matter?
Paragraph 6.61 of the FOI Guidelines states that a deliberative process may include
the recording or exchange of opinions, advice, recommendations, a collection of facts
or opinions, including the pattern of facts or opinions considered, and interim
decisions.
Document 4 contains preliminary enquiries and opinions as it relates to adopting the
Exposure Notification Framework (ENF) within the COVIDSafe app that were
considered when drafting the Ministerial Brief. These considerations shape the
‘thinking process’ that took place during discussions on the implementation of the
ENF, which involved an assessment of its potential risks and benefits. Release of this
information would reveal the nature of discussions that were not part of the final
advice in the Ministerial Brief and would prejudice the ability of the department to
engage frankly with the Minister’s Office in future consultations.
Does the deliberative matter contain purely factual material? Subsection 47C(2) of the FOI Act provides that deliberative matter does not include
‘purely factual material’. Accordingly, I have considered whether the identified
information in the documents is ‘purely factual’ within the meaning of
subsection 47C(2).
Paragraph 6.73 of the FOI Guidelines provides that ‘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 or intertwined with the deliberative content
such that it is impractical to excise it.
I have determined that while the deliberative material contains some ‘purely factual
material’, that information is central to the content and purpose of the deliberative
processes captured within those documents. Further, I consider the factual material
is inextricably linked to deliberations in the process of drafting the Ministerial Brief.
Relevantly, paragraph 6.74 of the FOI Guidelines advises that ‘where a decision
maker finds it difficult to separate the purely factual material from the deliberative
matter, both the elements may be exempt.’
For the reasons set out above, I am satisfied the release of the relevant material in
Document 4 would disclose deliberative matter within the meaning of section 47C of
the FOI Act, and it is conditionally exempt under section 47C.
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Public interest test Section 47C of the FOI Act is a conditional exemption. Pursuant to subsection 11A(5)
of the FOI Act, the department is required to give access to a conditionally exempt
document unless access to the document 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 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
enhance the scrutiny of government decision making.
I have also considered the following factors against disclosure:
there is a public interest in protecting preliminary opinions by keeping this
information confidential to ensure matters can be openly considered before
final decisions are made
disclosure of interim considerations could reasonably be expected to inhibit
the department’s ability to provide frank and candid advice and
recommendations in the context of the COVIDSafe app
disclosure of information not otherwise publicly available would diminish the
quality and usefulness of advice received and recommendations made, and
disclosure could reasonably be expected to prejudice crucial discussions held
within the department and undermine the operational deliberative processes
involved when briefing the Minister.
I confirm I have not had any regard to any of the irrelevant factors under subsection
11B(4) of the FOI Act.
On balance, I consider that disclosure of the relevant information in Document 4
would be contrary to the public interest for the reasons outlined above. I am satisfied
that the relevant information is exempt under section 47C of the FOI Act.
Therefore, in accordance with subsection 22(2) of the FOI Act, I have provided you
with an edited copy of Document 4 with the exempt material removed.
Section 47F – Personal privacy
Section 47F of the FOI Act conditionally exempts a document if its disclosure would
involve the unreasonable disclosure of personal information about any person.
‘Personal information’ under the FOI Act has the same meaning as section 6 of the
Privacy Act 1988, and means information or an opinion about an identified
individual, or an individual who is reasonably identifiable.
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Paragraph 6.130 of the FOI Guidelines provides:
Personal information can include a person’s name, address, telephone
number, date of birth, medical records, bank account details, taxation
information and signature.
Documents 1, 3 and 4 contain the names and contact details of third party
individuals. I am satisfied that this information constitutes personal information.
In considering whether disclosure of the personal information would be
unreasonable, subsection 47F(2) of the FOI Act requires me to take into account:
the extent to which the information is well known
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
the availability of the information from publicly accessible sources, and
any other matters I consider relevant.
I am satisfied from the nature of the information and my own enquiries that the
names and contact details of the relevant individuals are not well known. I am also
satisfied that the individuals to whom the personal information relates are not
known to be associated with the matters dealt with in the document.
I am satisfied that the disclosure of the personal information could unreasonably
affect their personal privacy, as a reasonable person would not expect such personal
information to be released in the public domain without consent.
Public Interest Test
Section 47F of the FOI Act is a conditional exemption. Pursuant to subsection 11A(5)
of the FOI Act, the department is required to give access to a conditionally exempt
document unless access to the document at the time would, on balance, be contrary
to the public interest.
I have considered the following factors in favour of disclosure to the extent
disclosure would:
promote the objects of the FOI Act by providing the Australian community
with access to government held information, and
inform debate on matters of public importance.
I have also considered the following factors against disclosure:
There is a public interest in protecting the privacy of an individual’s personal
information. The specific harm in disclosing an individual’s name and other
personal details without agreement, and where this information has not been
previously disclosed, would be an unreasonable interference with an
individual’s right to privacy.
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Release of this personal information would not add any substance to the
information being provided under the request and there would be no public
purpose achieved through the release of the personal information.
I confirm I have not had regard to any of the irrelevant factors under
subsection 11B(4) of the FOI Act.
After consideration of all relevant factors, I find that, on balance, the benefits of
protecting the individuals’ privacy must be given greater weight. I am satisfied that
personal information of the third party individuals is exempt from disclosure under
section 47F of the FOI Act.
Therefore, in accordance with subsection 22(2) of the FOI Act, I have provided you
with edited copies of Documents 1, 3 and 4 with the exempt material removed.
