Reference: FOI 4145
Concerned Citizen
By Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Concerned Citizen,
Decision on your Freedom of Information request
I refer to your request of 12 December 2022, to the Department of Health and Aged
Care (the department), seeking access under the
Freedom of Information Act 1982 (Cth)
(FOI Act) to:
Could you please provide any emails sent by Daniel Keys about COVIDSafe,
Bluetooth, contact tracing, exposure notifications or anything else discussed at the
meeting following this meeting?
Clarification/Modification of scope of request
On 14 December 2022, following consultation with you, you agreed to modify the
scope of your request to the following:
Any emails sent by Daniel Keys from the 21st of May 2020 to the 28th of May 2020
containing any of the following terms (ignoring any differences in capitalisation):
Apple, Google, Bluetooth, COVIDSafe, Exposure Notifications, ENF, EN, GAEN,
iOS, Android, Contact tracing
On 12 January 2023 the department consulted you informally on further scope
clarification. You advised you were seeking access to documents on the following
issue:
I am now requesting emails that Daniel Keys sent in the week following this meeting
that may relate to the information discussed at the meeting and which may shed some
light on why the Department failed to adopt the approach recommended by Apple and
Google.
I am authorised under subsection 23(1) of the FOI Act to make decisions in relation to
Freedom of Information requests. I am writing to notify you of my decision on your
request.
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
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FOI decision
I have identified 16 documents that are relevant to your request. These documents
were in the possession of the department when your request was received.
I have decided to give access to 16 documents in part, subject to the deletion of exempt
material.
A schedule setting out the documents relevant to your request, with my decision in
relation to those documents, is at
ATTACHMENT A.
My reasons for not providing access to material that has been deleted from the
documents are set out in
ATTACHMENT B.
Legislative provisions
The FOI Act, including the provisions referred to in my decision, are available on the
Federal Register of Legislation website: www.legislation.gov.au/Series/C2004A02562.
The
Privacy Act 1988 (Cth) (Privacy Act), can also be accessed from the Federal
Register of Legislation website here: www.legislation.gov.au/Series/C2004A03712.
Your review rights
I have set out your review rights at
ATTACHMENT C.
Publication
Where I have decided to release documents to you, the department may also publish
the released material on its Disclosure Log. The department will not publish personal
or business affairs information where it would be unreasonable to do so.
For your reference the department’s Disclosure Log can be found at:
www.health.gov.au/resources/foi-disclosure-log.
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Contacts
If you require clarification of any matters discussed in this letter you can contact the
FOI Section on (02) 6289 1666 or at xxx@xxxxxx.xxx.xx.
Yours sincerely
Elizabeth Sherwin
Assistant Secretary
Cyber and Protective Security Branch
27 February 2023
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14
2
25/05/2020
Email: Update on
RI 22
COVIDSafe R4
15
17
27/05/2020
Email: RRIF Q011 Using the RE 47F
COVIDSafe app 17 May
2020_pdf_pdf
16
2
22/05/2020
Email: Weekly update
REI
22, 47E(d)
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ATTACHMENT B.
REASONS FOR DECISION
FOI 4145
1.
Material taken into account
In making my decision, I had regard to the following:
the FOI Act
guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines)
the terms of your FOI request as outlined above
submissions from third parties consulted about documents which contain
information concerning them
the content of the documents sought
advice from an agency specified in Part II of Schedule 2 of the FOI Act relating
to information within documents, and
advice from departmental officers with responsibility for matters relating to
the documents sought.
2.
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 parts of documents are set out below.
3.
Section 47E - Documents affecting certain operations of agencies
Section 47E of the FOI Act provides that a document is conditionally exempt if its
disclosure would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or
audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Paragraph 6.120 of the FOI Guidelines states:
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
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that would enable those processes to be more efficient. For example, in Re Scholes and
Australian Federal Police [1996] AATA 347, the AAT found that the disclosure of
particular documents could enhance the efficiency of the Australian Federal Police as it
could lead to an improvement of its investigation process.
Paragraph 6.123 of the FOI Guidelines states that the predicted effect must bear on the
department’s ‘proper and efficient’ operations, that is, the department is undertaking
its expected activities in an expected manner. Where disclosure of the documents
reveals unlawful activities or inefficiencies, this element of the conditional exemption
will not be met and the conditional exemption will not apply.
I am satisfied that the parts of the documents marked ‘s47E(d)’ contain information
which, if disclosed, would or could reasonably be expected to, have a substantial and
an unreasonable effect on the department’s proper and efficient operations. These are
operational activities that are being undertaken in an expected and lawful manner and
would not reveal inefficiencies in the way in which the department conducts those
operational activities.
For the reasons outlined above, I have decided that parts of the documents marked
‘s47E(d)’ are conditionally exempt from disclosure under section 47E(d) of the FOI Act.
Where a document is found to be conditionally exempt, the department must give
access to that document unless access to the document at this time would, on balance,
be contrary to the public interest. I have addressed the public interest considerations
below.
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4.
Section 47F – Documents affecting personal privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information about
any person (including a deceased person).
Personal information
Personal information has the same meaning as in the Privacy Act. Specifically, section
6 of the Privacy Act provides that
personal information means information or an opinion
about an identified individual, or an individual who is reasonably identifiable whether
the information or opinion is true or not; and whether the information or opinion is
recorded in a material form or not.
Paragraph 6.131 of the FOI Guidelines states that for particular information to be
personal information, an individual must be identified or reasonably identifiable.
Paragraph 6.130 of the FOI Guidelines states that personal information can include a
person’s name, address, telephone number, date of birth, medical records, bank
account details, taxation information and signature.
An individual is a natural person rather than a corporation, trust, body politic or
incorporated association.
I am satisfied that parts of the documents contain personal information.
Unreasonable disclosure of personal information
Subsection 47F(2) of the FOI Act provides that in determining whether the disclosure
would involve the unreasonable disclosure of personal information, I must have
regard to the following matters:
(a) the extent to which the information is well known
(b) 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
(c) the availability of the information from publicly accessible sources
(d) any other matters that the agency or Minister considers relevant.
Paragraph 6.138 of the FOI Guidelines states that:
The personal privacy exemption is designed to prevent the unreasonable invasion of
third parties’ privacy. The test of ‘unreasonableness’ implies a need to balance the public
interest in disclosure of government-held information and the private interest in the
privacy of individuals. The test does not, however, amount to the public interest test of
s 11A(5), which follows later in the decision making process. It is possible that the
decision maker may need to consider one or more factors twice, once to determine if a
projected effect is unreasonable and again when assessing the public interest balance.
I note that the AAT, in
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at paragraph 259, stated that:
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... whether a disclosure is ‘unreasonable’ requires … a consideration of all the
circumstances, including the nature of the information that would be disclosed, the
circumstances in which the information was obtained, the likelihood of the information
being information that the person concerned would not wish to have disclosed without
consent, and whether the information has any current relevance … it is also necessary in
my view to take into consideration the public interest recognised by the Act in the
disclosure of information … and to weigh that interest in the balance against the public
interest in protecting the personal privacy of a third party ...
Paragraphs 6.142 and 6.143 of the FOI Guidelines state:
6.142
Key factors for determining whether disclosure is unreasonable include:
the author of the document is identifiable
the documents contain third party personal information
release of the documents would cause stress on the third party
no public purpose would be achieved through release
6.143
As discussed in the leading s 47F IC review decision of ‘FG’ and National
Archives of Australia [2015] AICmr 26, other factors considered to be relevant include:
the nature, age and current relevance of the information
any detriment that disclosure may cause to the person to whom the
information relates
any opposition to disclosure expressed or likely to be held by that person
the circumstances of an agency’s collection and use of the information
the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
any submission an FOI applicant chooses to make in support of their
application as to their reasons for seeking access and their intended or likely
use or dissemination of the information, and
whether disclosure of the information might advance the public interest in
government transparency and integrity
Paragraph 6.153 of the FOI Guidelines states:
Where public servants’ personal information is included in a document because of their
usual duties or responsibilities, it would not be unreasonable to disclose unless special
circumstances existed. This is because the information would reveal only that the public
servant was performing their public duties. Such information may often also be publicly
available, such as on an agency website.
The documents contain the personal information of Australian Public Service (APS)
staff who are not in the Senior Executive Service (SES).
However, I note that in
Chief Executive Officer, Services Australia and Justin Warren [2020]
AATA 4557
(Warren), at paragraph 83, Deputy President S A Forgie noted:
The whole of the FOI Act is a finely tuned balance between two interests. In one side
of the balance is the facilitation and promotion of access to a national resource that is
information held by Government, which enables increased public participation in
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Government processes and increased scrutiny, discussion, comment, and review of the
Government’s activities. In the other is the protection of the national interest, the
essential operation of government and the privacy of those who deal with government.
It is most important, therefore, that its provisions be read very carefully and that
presumptions should not be introduced that are not expressed, or necessarily implicit,
in the words Parliament has chosen to achieve the balance that it wants. Those words
should be the starting point of any consideration rather than any presumption that
agencies and ministers should start from the position that the inclusion of the full
names of staff in documents increases transparency and increases the objects of the
FOI Act.
I am satisfied that the disclosure of personal information contained within the
documents would, in the circumstances, constitute an unreasonable disclosure of
personal information for the following reasons:
the individuals whose personal information is contained in the documents are
identifiable
release of this information would cause anxiety to the individuals concerned
no further public purpose would be achieved through the release of the
personal information
the information is current and has not lost its sensitivity through the passage of
time
the placing of the personal information of individuals who work for a
government department into the public domain has the potential to place those
individuals at risk of harassment, abuse, threats and intimidation. This would
be detrimental to the individuals concerned, and potentially also their families.
Mitigating this risk is even more important with the prevalence of social media
and technology allowing individuals to be more easily identifiable and
contactable in online environments
the individuals would not expect the information to be placed in the public
domain, and detriment may be caused to the individuals to whom the
information relates, and
the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
For the reasons outlined above, I have decided that the parts of the documents marked
‘s47F’ are conditionally exempt from disclosure under section 47F of the FOI Act.
Where a document is found to be conditionally exempt, the department must give
access to that document unless access to the document at this time would, on balance,
be contrary to the public interest. I have addressed the public interest considerations
below.
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5.
Disclosure is not in the public interest
Pursuant to subsection 11A(5) of the FOI Act, the department must give access to
conditionally exempt documents unless access to the documents at that time would,
on balance, be contrary to the public interest. I have therefore considered whether
disclosure of the documents would be contrary to the public interest.
Paragraph 6.5 of the FOI Guidelines states:
The public interest test is considered to be:
something that is of serious concern or benefit to the public, not merely
of individual interest
not something of interest to the public, but in the interest of the public
not a static concept, where it lies in a particular matter will often depend
on a balancing of interests
necessarily broad and non-specific and
relates to matters of common concern or relevance to all members of the
public, or a substantial section of the public.
Factors favouring disclosure
Section 11B of the FOI Act provides that factors favouring access to documents in the
public interest include whether access to the documents would do any of the
following:
promote the objects of the FOI Act (including all matters set out in sections 3
and 3A)
inform debate on a matter of public importance
promote effective oversight of public expenditure, or
allow a person to access his or her own personal information.
Having regard to the above, I consider that disclosure of the conditionally exempt
information at this time:
would provide access to documents held by an agency of the Commonwealth
which would promote the objects of the FOI Act by providing the Australian
community with access to information held by the Australian Government.
would not inform debate on a matter of public importance, and
would not promote effective oversight of public expenditure
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Factors weighing against disclosure
I consider that the following public interest factors weigh against disclosure of the
conditionally exempt information at this time, on the basis that disclosure:
s47E(d)
could reasonably be expected to have a substantial adverse effect on the proper
and efficient conduct of the operations of an agency.
s47F
could reasonably be expected to prejudice the protection of the relevant
individuals’ right to personal privacy, noting that the substance of the
documents has been released to you and disclosure of the personal information
would not provide you with any further insight into the workings of
government
would not achieve any public purpose and, on balance, would harm the
individual’s right to personal privacy
In making my decision, I have not taken into account any of the irrelevant factors set
out in subsection 11B(4) of the FOI Act, which are:
(a) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the
Commonwealth Government;
(b) access to the document could result in any person misinterpreting or
misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to
which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Conclusion
For the reasons set out above, after weighing all public interest factors for and against
disclosure, I have decided that, on balance, disclosure of the conditionally exemption
information would be contrary to the public interest. I am satisfied that the benefit to
the public resulting from disclosure is outweighed by the benefit to the public of
withholding the information and find the material so marked s47E(d) and s47F exempt
from disclosure.
6.
Information relating to exempt agencies
Part 2 of the FOI guidelines outlines that all Australian Government agencies are
exempt from the operation of the Act in relation to ‘intelligence agency documents’
and ‘defence intelligence documents’. The exemption also extends to a part of a
document that contains an extract from or a summary of an intelligence agency
document or a defence intelligence document.
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Some parts of the relevant documents within the scope of your request have
information that originated from one of these exempt agencies. The department has
consulted with this agency who have maintained their exempt status regarding the
release of this information. Therefore, the material has been removed from the
documents under section 22 of the FOI Act as it is exempt from the operation of the
FOI Act as outlined in section 7.
7.
Section 22 – deletion of irrelevant and/or exempt material
Section 22 of the FOI Act applies to documents containing exempt material
(subparagraph (1)(a)(i)) and irrelevant information (subparagraph (1)(a)(ii)) and
allows an agency to delete such material from a document.
I have deleted material in the documents which can reasonably be regarded as
irrelevant to your request and prepared an edited copy for release. This information
has been marked ‘s22’ in the documents released to you.
The documents contain the names and telephone numbers of Department of Health
employees. When your request was acknowledged, we notified you that this material
would be considered irrelevant to the scope of your request unless you told us that
you were seeking access to that material. On the basis that you did not notify us
otherwise, this information has been deleted under section 22 of the FOI Act as
outlined above.
As I have decided that some of the information in the documents released to you is
exempt from disclosure, I have prepared an edited copy of the documents by deleting
the exempt information under section 22 of the FOI Act as outlined above.
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ATTACHMENT C.
YOUR REVIEW RIGHTS
If you are dissatisfied with my decision, you may apply for a review.
Internal review
You can request internal review within 30 days of you receiving this decision. An
internal review will be conducted by a different officer from the original decision-
maker.
No particular form is required to apply for review although it will assist your case to
set out the grounds on which you believe that the original decision should be changed.
Applications for internal review can be made by:
Email:
xxx@xxxxxx.xxx.xx
Mail:
FOI Unit (MDP 516)
Department of Health
GPO Box 9848
CANBERRA ACT 2601
If you choose to seek an internal review, you will also have a right to apply for
Information Commissioner review (IC review) of the internal review decision once it
has been provided to you.
Information Commissioner review or complaint
You also have the right to seek Information Commissioner (IC) review of this decision.
For FOI applicants, an application for IC review must be made in writing within
60 days of the decision. For third parties who object to disclosure of their information,
an application for IC review must be made in writing within 30 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge
a complaint with the OAIC. However, the OAIC suggests that complaints are made
to the agency in the first instance.
While there is no particular form required to make a complaint to the OAIC, the
complaint should be in writing and set out the reasons for why you are dissatisfied
with the way your request was processed. It should also identify the Department of
Health and Aged Care as the agency about which you are complaining.
You can make an IC review application or make an FOI complaint in one of the
following ways:
online at www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/
via email to xxxxx@xxxx.xxx.xx
by mail to GPO Box 5218 Sydney NSW 2001, or
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by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is
available on the OAIC website here: www.oaic.gov.au/freedom-of-information/foi-
review-process.
Complaint
If you are dissatisfied with action taken by the department, you may also make a
complaint directly 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 here: www.health.gov.au/about-us/contact-us/complaints
