To the Australian Digital Health Agency,

Under s 15(1) of the Freedom of Information Act 1982 (FOI Act), I make a s 15(2) compliant request for access for the following scope below.

This request is an application for the purposes of the FOI Act and notices under the FOI Act are to be sent to email address this request came from.

The FOI is in two parts:

* Part A

I apply for copy of Australian Digital Health Agency gift register for financial years 2017/2018 & 2018/2019.

Every Commonwealth body is required to maintain and record a gift register, for any benefit or gift received (above an inconsequential value - typically $20), by an employee (including consultants & contractors) of that Commonwealth body in the course of, or in connection to, their official duties for that Commonwealth body.

* Part B

I apply for copy of Australian Digital Health Agency‘s Chief Executive Instructions (CEIs - the corporate governance instruments every Commonwealth body is required to produce), including the gift policy (or policies if there are two seperate ones for gifts received & gifts given).

To be given electronically to the email address this request came from.

Ciao,

Julie

Reminder (given I know the Australian Digital Health Agency has consistently argued otherwise in the past):

Where an FOI agency seeks charges, or claims third party consultation, it bears the legal onus under the Freedom of Information to justify that claim. To date, in all previous FOIs, the Australian Digital Health Agency has failed to do so (even hyper-inflating original charges calculations, once put under review, before embarrassingly have to concede there was no justification to either the original or increased ‘calculations’, resulting in waiver)

The discretion to impose a charge is not unfettered. FOI agencies are statutorily required to take into account the ‘lowest reasonable cost objective’ in s 3(4) of the FOI Act, which provides that ‘functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’.

The FOI guidelines discuss at [4.4] that:
Agencies and ministers should interpret the ‘lowest reasonable cost’ objective broadly in imposing any charges under the FOI Act. That is, an agency or minister should have regard to the lowest reasonable cost to the applicant, to the agency or minister, and the Commonwealth as a whole. Where the cost of calculating and collecting a charge might exceed the cost to the agency to process the request, it would generally be more appropriate not to impose a charge.

In Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2015] AICmr 65 [31], the former Information Commissioner stated:
“I note that in this case, there is a danger that the cost of calculating and collecting a charge might exceed the cost to the agency of processing the request, which would militate in favour of the waiver of the charge.”

The Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (the FOI Guidelines) provide the following advice at paragraphs [4.57] to [4.59] in relation to charges calculators:

A charges calculator cannot produce an accurate estimate without accurate inputs and caution is required in adopting such a resource. Some documents may contain complex material, which might justify longer processing times, while others may be quite straight-forward, and would require significantly less time to review.

A common parameter that is included in the charges calculator is that the examination of relevant pages for decision making would take five minutes per page, and for exempt material, an additional five minutes per page. Unless the document at issue is particularly complex, it may be difficult for an agency or minister to adequately justify an estimate that it would take 10 minutes to process each page of the relevant documents.

Where a decision is made to utilise the charges calculator to estimate a charge, the agency or minister should examine a sample of the relevant documents and adjust the parameters of the charges calculator accordingly...

In previous IC review decisions in relation to practical refusal matters, it has generally been considered that between 30 seconds per page to 5 minutes per page is a reasonable estimate of the time required for an agency to assess and edit documents, except where the documents contain a substantial amount of sensitive information.

I also draw your attention to paragraphs [4.60] to [4.62] of the FOI Guidelines, which states:

Generally, where a large number of documents have been identified as being within the scope of the request and the agency or minister decides that it is appropriate to impose a charge, there is an expectation that the agency or minister will obtain an accurate estimate by sampling a reasonable selection of the relevant documents.

A representative sample of at least 10% of the documents is considered as an appropriate sample size to assess the processing time. This provides the agency or minister with an indication of the time that may be required for the decision-making process.

Agencies and ministers should assess the amount of time it would take to search and retrieve the documents held in the representative sample, as well as the amount of time it would take to examine, consider any exemptions that may apply and prepare a decision for those documents. The figures derived from the representative sample should then be used to calculate the total processing time for the documents falling within the scope of the applicant’s request...

Dear Do Not Support My Health Record,

Dear Bettina,

As per my scope, this FOI covers the ADHA CEIs (Chief Executive Instructions, a set of financial rules) and the ADHA Gift Register (gifts that ADHA employees have received from third parties).

This sort of summary probity data does not attract the sort of material necessary to met the s 26A, s 27 or s 27A thresholds.

Indeed it is surprising that the Australian Digital Health Agency (ADHA) is seeking to cloak in secrecy, via a blatant misuse of s 27, its financial probity records, when other agencies do not. It highlights that (against a background of ethically questionable transactions certain members of the Australian Digital Health Agency have used taxpayer funds for) governance and probity at the Australian Digital Health Agency is weak/non-existant and that the Australian Digital Health Agency has not been complying with Whole of Government corporate governance and financial probity rules.

As you would be aware, thirty party consultation extensions can only occur where a document caught by the scope of the FOI request would enliven s 26A (documents affecting Commonwealth-State relations), s 27 (documents affecting business information) or s 27A (documents affecting personal privacy), and such third party consultation is to be at the earliest opportunity (not at the end of the s 15(5)(b) statutory deadline).

As the Australian Information Commissioner’s FOI Guidelines for agencies makes explicit “Agencies and ministers are encouraged to build into their FOI process an early and quick assessment of whether an extension may be required”. This is to avoid the association that the agency is ‘gaming the clock’ by intentionally delaying notification until the last minute.

While not exactly last minute, it wasn’t far off, and that should be something kept in mind in future to improve on.

I also note the Commissioner’s own FOI Guidelines state that “Where a third party has review rights in relation to only some of the documents” that an agency or minister should provide the applicant with access to those documents not containing material that may enliven s 26A (documents affecting Commonwealth-State relations), s 27 (documents affecting business information) or s 27A (documents affecting personal privacy).

In this case, your notice has specified s 27 (documents affecting business information) as the basis of the third party consultation and it appears you’ve claimed s 27 applies to all material, including Part B of the scope - which are for the Australian Digital Health Agency‘s Chief Executive Instructions, to which no s 27 claim can lie (and which therefore where required to have been released under staged access provisions, as no legal grounds to delay access existed).

To enliven s 27, there are three preliminary steps to be met.

Firstly, at least one document in scope must contain contain the business information of a third party that concerns their business, commercial professional or financial affairs; AND

Secondly, the decision maker must have a reasonable belief that:

- the third party might reasonably wish to make a contention to prevent access to Commonwealth documents; AND

- the decision maker reasonably believes the document/documents (or parts thereof) could be exempt under s 47 (trade secrets etc.); or could be conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) [Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest]

Thirdly, in determining that reasonable belief, the decision maker must have regard all to the following matters:

(a) the extent to which the information is well known;

(b) whether the person, organisation or undertaking is known to be associated with the matters dealt with in the information;

(c) the availability of the information from publicly accessible sources;

(d) any other matters that the agency or Minister considers relevant.

It is only then, if all three steps are correctly carried out, that the power to stop the s 15(5)(b) deadline clock is enlivened.

What documents (or part there of) fall within the jurisdiction of s 27 is much narrower than just “business information”. To enliven s 27, the documents must disclose:

- a trade secret; (s 47)

- information that has a commercial value that would or could reasonably be expected to be destroyed or significantly diminished if disclosed; (s 47)

- would or could reasonably be expected to adversely affect that third party in their undertaking of their lawful business, professional, commercial or financial affairs, that would be not in the public interest to disclose; (s 47G)

- would or could reasonably prejudice the future supply of information to the Commonwealth, for the purposes of the administration of a law of the Commonwealth, contrary to the public interest (s 47G)

Given the scope of the FOI, it appears the only ground is a conditional exemption ground under s 47G, in that an alleged reasonable belief is allegedly held by the decision maker, that release of the Australian Digital Health Agency gift register would reasonably adversely affect a third party, contrary to the public interest.

Principles that are relevant in considering the interpretation and application of the expression “would, or could reasonably be expected” show that the words are interpreted according to their ordinary meaning:

“... they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that... [disclosure would reasonably adversely affect the un-named third party/ies, in a way contrary to the public interest]... It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.... It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 per Gibbs CJ and Mason J).”AG v Cockcroft [1986] FCA 35 at [106,112]

Section 47G requires that disclosure of a document would, or could reasonably be expected to “unreasonably affect” a person adversely in respect of his or her business affairs or an organisation or undertaking in respect of its lawful, business, commercial or financial affairs. The following factors were identified as relevant when considering whether disclosure under the FOI Act would or could reasonably be expected to “unreasonably affect”:

“If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or product posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp. (1991) 29 FCR 429 at 438, 441.”

Specifically, and relevantly, the issue of financial documents relating to provision of direct and indirect support from the Commonwealth to a person or business, in relation to s 47G, was analysed by the AAT:

“There is a public interest in ensuring that moneys given for a particular purpose are used for that purpose.... There is a public interest in ensuring that the Commonwealth has in place proper reporting requirements so that it can ensure that it can account for the moneys that are given... the Chief Executive of an Agency, including the Department, was required to manage its affairs in a way that promoted the proper use of Commonwealth resources for which he or she was responsible.... By “proper use” was meant “... efficient, effective, economical and ethical use... the public interest in knowing whether public money was accounted for at the appropriate time in the manner required and the public interest in ensuring that public programmes are properly administered, I conclude that any adverse effect that would, or that might reasonably be expected, to follow disclosure of the documents would not be an unreasonable adverse effect... Therefore, I am not satisfied that Documents 1 and 2 are conditionally exempt under s 47G” Bell and Secretary, Department of Health (Freedom of information) [2015] AATA 494

Given the scope of this FOI, which was for the CEIs and the gift register, then on the basis of the information provided by the Department in this notice of third party consultation, it would not be possible for a reasonable belief of s 27 enlivenment to formed, as the material in question falls below the bar required to be met (especially as consent was already given to redact any information not relating to said financial data).

As such, please provide additional information as to the basis of your s 27 claim, and please provide a schedule of documents, noting the number of pages for each document (given they are a s 17 document/s, that should be only a couple of pages), and list what number of pages in those documents s 27 is allegedly claimed on.

Given the hostility and prior financial improprieties of the Australian Digital Health Agency, I suppose it is not surprising that the Australian Digital Health Agency (ADHA) is cloaking in secrecy these documents, that other agencies are happy to promote to show they are complying with Whole of Government financial accounting and probity rules! This should be something ADHA wants to promote, not hide, but then given the history of financial mismanagement and fraud at the Australian Digital Health Agency I guess something unusual or irregular about the gift register this year, has changed the normal practice of proper financial disclosure? Is it because a senior ADHA SES employee has breached whole of government rules on gifts?

As this fraudulent 30 day delay is almost up, you can’t keep hiding it forever. I suggest stop playing unethical games and just do what you were always required to do under the Freedom of Information Act and release these long overdue documents.

Ciao,

Julie