FOI reference: FOI 4151
Ms Karen Reynolds
By Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Reynolds
Decision on your Freedom of Information Request
I refer to your request of 17 December 2022, to the Department of Health and Aged
Care (the department), seeking access under the
Freedom of Information Act 1982 (Cth)
(FOI Act) in the following terms:
I am seeking - any correspondence, diary notes, meeting notes, emails, file notes or
memos between the Department of Health and Pro Medical/Neran de Silva, as well as
Minister Stuart Robert involving the supply of test kits to the Australian Government.
On 5 January 2023, the department sent an email to you to clarify that types of
documents held by the department. That email included the following information:
Documents of former Ministers
Please be advised that this department does not hold all correspondence between
Ministers and third parties, and generally does not hold any correspondence between
Ministers who administer other portfolios and third parties.
If you are interested in obtaining correspondence between former Minister Robert and
third parties, you might like to submit an FOI request to the relevant
department. Information about former Minister Robert and the positions he has
occupied is available here:
https://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=HWT
Clarification of scope
In addition to whether you are seeking information specifically about “COVID-19” test
kits (as set out in the email below), the department needs clarification on the term
“supply”.
In particular, are you seeking access to documents regarding the TGA approval
process of (COVID-19) test kits, or is your request for documents regarding the
GPO Box 9848 Canberra ACT 2601
- www.health.gov.au
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procurement or purchase of the test kits by the department for supply to Australian
citizens after the TGA approval process had been completed?
If you are seeking documents regarding the approval process of test kits, please
submit a separate FOI request to the Therapeutic Goods Administration (TGA):
xxxxxx@xxxxxx.xxx.xx.
The department has not received a response to our 5 January 2023 email.
FOI decision
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.
I have identified seven 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 seven 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
Michael Ryan
Michael Ryan PSM
Acting Assistant Secretary
Diagnostic Imaging & Pathology Branch
16 January 2023
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ATTACHMENT B.
REASONS FOR DECISION
FOI 4151
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
• the content of the documents sought, 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 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.
In addition, sensitive personal information, as defined by the Privacy Act, includes
‘health information’, meaning information or an opinion about:
(a) the health or a disability (at any time) of an individual; or
(b) an individual’s expressed wishes about the future provision of health services to
him or her; or
(c) a health service provided, or to be provided, to an individual.
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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 marked ‘s47F’includes 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:
... 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:
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• 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
I am satisfied that the disclosure of personal information contained within the
document 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 noting that the personal information is included in the
document as a result of their employment circumstance
• the information is current and has not lost its sensitivity through the passage
of time
• 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.
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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.
4. 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.
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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,
• would not promote effective oversight of public expenditure, and
• would not allow you to access your own personal information.
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:
• 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 some of the conditionally
exemption information would be in the public interest. I am satisfied that the benefit
to the public resulting from disclosure outweighs the benefit to the public of
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withholding the information. Accordingly, I have decided to release that conditionally
exempt information.
However, after weighing all public interest factors for and against disclosure of the
remaining conditionally exempt information, I have decided that, on balance,
disclosure of that 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. Accordingly, I have caused that
conditionally exempt information to be redacted from the documents provided to you.
5. 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 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.
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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/
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• via email to xxxxx@xxxx.xxx.xx
• by mail to GPO Box 5218 Sydney NSW 2001, or
• 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
