Department References: FOI 3660


Mr Dan McDonald
via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr McDonald

NOTICE OF DECISION

I refer to your request of 3 March 2022 to the Department of Health (department),
seeking access under the Freedom of Information Act 1982 (FOI Act) to:

Documents regarding the procurement of the Al  Covid-19 Vaccine supply
for Australia, from and to any Federal and related State Cabinet or
Ministerial Portfolio/ Business Agency:

This includes:

documents prepared for representatives of the Australian government
regarding scope of negotiations/procurement authority and limits to
authority to make an agreement between the Australian government and
ALL Pharmaceutical Supplier of Organisation, approved and pending.

contracts for supply, purchase, distribution and storage by the Australian
government and ALL Pharmaceutical Supplier of Organisation for ALL
Covid-19 Vaccines, approved and pending.

Information about COVID-19 vaccine procurement agreements

The Australian Government has invested more than $350 million in vaccine research
and development. The Australian Government has also invested more than $8 billion
in the national COVID-19 vaccine rollout and is continuing to roll out the approved
vaccines.


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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As part of Australia’s Vaccine and Treatment Strategy, the Australian Government
has made several agreements to purchase doses of the Pfizer vaccine, which is
manufactured overseas. Information about the Pfizer vaccine and the supporting
supply agreements is available here:
•  the Minister for Health’s November 2020 statement on the Pfizer vaccine
agreement
•  the Minister for Health’s February 2021 statement
•  the Prime Minister's press conference
•  the Prime Minister’s media release about booster doses
•  the Prime Minister’s media release about the agreement with Poland
•  the Prime Minister’s media release on the Singapore swap
•  the Prime Minister’s media release on the UK partnership.

The Moderna vaccine is another mRNA vaccine, similar to Pfizer. Information about
the Moderna supply agreement is available here:
•  the Minister for Health's media release on the Moderna agreement.

Biopharmaceutical company CSL manufactures the AstraZeneca vaccine in
Australia. Currently the AstraZeneca COVID-19 vaccine is the only vaccine that we
can manufacture in Australia. Distribution of the locally made doses is ongoing. The
Australian Government has secured 53.8 million doses of this vaccine, consisting of:
•  3.8 million doses imported from overseas, which arrived on 28 February 2021.
•  50 million doses manufactured in Australia.

The TGA has provisionally approved the Nuvaxovid vaccine developed by Novavax
for use in a primary course of vaccination against COIVD-19 in people aged 18 years
and older. Novavax and the Australian government announced an advance purchase
agreement for 51 million doses of Novavax's COVID-19 vaccine in January
2021.  Information about this vaccine is available here:
•  Minister for Health media release.

FOI Decision

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

I have identified 20 documents falling within  the scope of your FOI request. The
documents are set out in the schedule at Attachment A.

I have decided to refuse access to all 20 documents in full on the basis that they are
exempt. My reasons for this decision are set out at Attachment B.

Third Party Consultation

On 28 March 2022, the department informed you that consultation with third parties
would be necessary. I took the submissions received by the  third parties into account
when making my decision on access.

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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
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/C2022C00056
Contacts
If you require clarification of any of the matters discussed in this letter you should
contact Freedom of Information Unit via email at xxx@xxxxxx.xxx.xx
Yours sincerely
Trish Garrett
First Assistant Secretary
Vaccine Operations & Data Division
COVID-19 Vaccine Taskforce
21 April 2022

ATTACHMENT A

SCHEDULE OF DOCUMENTS – FOI 3660

Document
Date
Number
Description
Decision Exemptions
no.
of pages
on access
applied
1
September
39
AstraZeneca Vaccine Supply
Exempt
section 45
2020
Agreement
section 47
2
September
14
CSL Supply and Production
Exempt
section 45
2020
Agreement
section 47
3
December
9
CSL Supply and Production
Exempt
section 45
2020
Agreement - Variation
section 47
4
December
37
Novavax Vaccine Supply
Exempt
section 45
2020
Agreement
section 47
5
December
73
Pfizer Vaccine Supply
Exempt
section 45
2020
Agreement
section 47
6
February
5
Amendment to Pfizer Vaccine
Exempt
section 45
2021
Supply Agreement
section 47
7
April 2021
6
Second Amendment to Pfizer
Exempt
section 45
Vaccine Supply Agreement
section 47
8
May 2021
28
COVAX Pfizer Supply
Exempt
section 45
Agreement
section 47
9
July 2021
24
Third Amendment to Pfizer
Exempt
section 45
Vaccine Supply Agreement
section 47
10
August
10
Tripartite Agreement Pfizer -
Exempt
section 45
2021
Poland-Australia
section 47
11
August
15
Tripartite Agreement Pfizer -
Exempt
section 45
2021
Singapore-Australia
section 47
12
September
7
UK Pfizer Doses - Agreement
Exempt
section 45
2021
Pfizer and Australia
section 47
13
December
26
Fifth Amendment to Pfizer
Exempt
section 45
2021
Vaccine and Supply Agreement
section 47
14
May 2021
55
Moderna Vaccine Supply
Exempt
section 45
Agreement
section 47
15
September
7
Moderna EU Vaccine Resale
Exempt
section 45
2021
Agreement – 1
section 47
16
September
7
Moderna EU Vaccine Resale
Exempt
section 45
2021
Agreement – 2
section 47
17
September
7
Moderna EU Vaccine Resale
Exempt
section 45
2021
Agreement – 3
section 47
18
September
7
Moderna EU Vaccine Resale
Exempt
section 45
2021
Agreement – 4
section 47
19
September
7
Moderna EU Vaccine Resale
Exempt
section 45
2021
Agreement – 5
section 47
20
September
7
Moderna EU Vaccine Resale
Exempt
section 45
2021
Agreement – 6
section 47

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ATTACHMENT B

REASONS FOR DECISION – FOI 3660

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 from third parties
•  the relevant provisions of the FOI Act, and
•  guidelines issued by the OAIC under section 93A of the FOI Act (FOI
Guidelines).

Finding of facts and reasons for decision

My findings of fact and reasons for deciding that the exemptions identified in the
schedule of documents apply to the relevant documents or parts of documents are
set out below.

Section 45 – Material obtained in confidence

Section 45 of the FOI Act provides that a document is exempt if its disclosure under
the FOI 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 relevantly 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:
•  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.

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Addressing the  above criteria, I am satisfied that the documents contain information:
•  specifically identified as being subject to a confidentiality requirement
•  that is confidential in nature, and was communicated on that basis
•  that was communicated pursuant to a mutual understanding of confidence
between the department and the relevant third parties
•  in circumstances where disclosure has not  been authorised by the relevant
third parties, and
•  that, if disclosed, would cause detriment to the relevant third parties.

Disclosure of the documents would be inconsistent with the confidentiality
obligations between the department and the relevant third parties, and would
undermine industry confidence in the confidentiality of third party interactions and
negotiations with  the department regarding supply, pricing and risk measures.

The specific detriment that would be caused by unauthorised disclosure of the
information contained in the documents would be undermining the bargaining
position of the relevant third parties and the department in future negotiations.
Disclosure could also adversely affect the  relationship of the third parties with their
existing customers.

I am satisfied that the documents are exempt from disclosure in full under section 45
of the FOI Act. Accordingly, they have not been provided to you.

Section 47 –Commercially valuable information

Subsection 47(1)(b)  of the FOI Act exempts a document if its disclosure would
disclose information having a commercial value that would be, or could reasonably
be expected to be, destroyed or diminished if the information were to be disclosed.

Commercial value

Paragraph 5.204 of the FOI Guidelines provides that for a document to be exempt
under paragraph 47(1)(b) of the FOI Act, it must satisfy two criteria:
1.  the document must contain information that has a commercial value either to
an agency or to another person or body, and
2.  the commercial value of the information would be, or could reasonably be
expected to be, destroyed or diminished if it were disclosed

Paragraphs 5.205 to 5.207 of the FOI Guidelines provide that it is a question of fact
whether the information has a commercial value, and whether disclosure would
destroy or diminish that  value. Commercial value can  include information relating
to the profitability or viability of a continuing business operation or commercial
activity in which an agency or person is involved.
Paragraph 5.205 of the FOI Guidelines set out the following factors, which may assist
in deciding whether information has commercial value:

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•  whether the information is known only to the agency or person for whom it
has value or, if it is known to others, to what extent that detracts from its
intrinsic commercial value
•  whether the information confers a competitive advantage on the agency or
person to whom it relates – for example, if it lowers the cost of production or
allows access to markets not available to competitors
•  whether a genuine ‘arm’s-length’  buyer would be prepared to pay to obtain
that information
•  whether the information is still current or out of date (out of date information
may no longer have any value), and
•  whether  disclosing the information  would reduce the value of a business
operation or commercial activity – reflected, perhaps, in a lower share price.

Having regard the above criteria, I am satisfied that the documents contain
commercial information regarding the procurement of vaccines to Australia:
•  which is known only to the relevant parties
•  which is specifically relevant to the unique commercial arrangements
between the department and third parties, including indicative prices,
payment terms, professional indemnity, ongoing funding measures,
manufacturing  details and production measures
•  that has current and considerable commercial value to the third parties as it is
relevant to the profitability and viability of the third parties’ continuing
business operations which would be lost if disclosed to a competitor
•  which is not known to others, and that a competitor would pay to obtain the
information, and
•  the value of which would be lost or diminished if shared or disclosed,
adversely impacting on the relevant third parties’ competitive edge.

Destroyed or Diminished

I am  satisfied that if the documents are disclosed, it could reasonably be expected
that  its intrinsic value would be destroyed or diminished. As outlined above, the
information is valuable for the purposes of carrying on the commercial activities in
which the Commonwealth engages. The disclosure of the relevant information could
prejudice the future supply of such information  to the Government.

For the reasons set out above, I am satisfied that the documents are exempt from
disclosure under section 47 of the FOI Act. Accordingly, these documents have not
been provided to you.

Document Outline