The eHealth MoU which replaced the expired eHealth NPA

Karen Dearne made this Freedom of Information request to Department of Health

The request was refused by Department of Health.

From: Karen Dearne

Delivered

Dear Department of Health and Ageing,

Please provide a copy of the eHealth Memorandum of Understanding which replaces the National Partnership on E-Health which expired on end of June 2012.

The department has advised the Senate Estimates Community Affairs committee that the eHealth MOU, governing future ehealth arrangements between the commonwealth, state and territory governments, was agreed by COAG's Standing Council on Health on November 9, 2012.

The document has not been published, as is customary, on COAG's Agreements and Reporting web pages.

Thank you for your assistance.

Yours faithfully,

Karen Dearne, Sydney NSW

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Department of Health


Attachment Acknowledgment letter.pdf
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Dear Ms Dearne

Please see attached letter in relation to your FOI request.

Kind regards
Katrina

Katrina Carbone | FOI Officer
FOI Unit |Information Law Section| Legal Services Branch| Department of
Health & Ageing
' (02) 6289  1718 6 (02) 6289 5604 | * MDP 350 |

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Department of Health


Attachment FOI 175 1213 Ms K Dearne.pdf
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Dear Ms Dearne

Find attached a letter from the Department of Health and Ageing in regards
your FOI request seeking access to the eHealth Memorandum of
Understanding.

Regards

Christine Zygadlo
FOI Case Officer
FOI Unit / Information Law Section
Ph: (02) 6289 1666

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Red left an annotation ()

I am puzzled why the department would be imposing charges to request a document that should be publicly available any way? And why would there need to be 3rd party consultaion or decision making about a document that should be on the COAG site already? Maybe some questions need to be asked of the department's rationale.

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Alex Sadleir left an annotation ()

An FOI charge is not a debt but it is expected that the agency will release documents you want to receive so you will pay the charge to receive them. I mention this because the FOI officer has erroneously used the term "debt" in the letter.

"The FOI Act does not declare that an assessed charge is a debt due to the Commonwealth; it does not confer jurisdiction upon any court to enforce a debt; an assessed charge is not necessarily an ascertained or settled amount; and the FOI Act provides its own limited mechanism to ensure that assessed charges are paid, namely that an agency is not required to provide access to non-exempt documents until the charge is paid (s 11A(1)(b))."
http://www.oaic.gov.au/publications/guid...

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Karen Dearne left an annotation ()

This request will be processed upon payment of $279, but the document involved should have been published on the Standing Council on Federal Financial Relations (see here: http://www.federalfinancialrelations.gov... as a matter of course, as it represents the agreed commonwealth, state and territory governments funding arrangements for the National E-Health Transition Authority's continued operation in the current and next financial year. I will therefore request the fee be waived on public interest grounds.

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From: Karen Dearne

Delivered

Dear Mr Schreiber

Thank you for your response to my FOI Request No 175-1213.

However I am at a loss over your decision to impose substantial charges to access a document that should already be in the public domain.

The Commonwealth Department of Health has advised the Senate Community Affairs Committee that the Memorandum of Understanding on eHealth replaces the expired National Partnership Agreement on E-Health.

The expired E-Health Agreement is to be found among all such publications on the Federal Financial Relations website (http://www.federalfinancialrelations.gov...

This is the one I am referring to: http://www.federalfinancialrelations.gov...

It details the legal and financial arrangements, plus performance reporting requirements, agreed between the Commonwealth, State and Territory governments on E-Health, under the provisions of the Intergovernmental Agreement of Federal Financial Relations and related schedules.

Under the Agreement, each party has specific roles and responsibilities with regard to supplying financial contributions and undertaking actions to support the aims of a nationwide e-health system, via the foundation efforts of the National E-Health Transition Authority - a not-for-profit body previously established by all the parties for that purpose.

It was originally signed on December 7, 2009, at a Council of Australian Government meeting, by the then prime minister, Kevin Rudd, and all state and territory premiers/chief ministers; it expired on June 30, 2012.

I understand that the MOU I am seeking was agreed in place of a renewed formal NPA on eHealth.

If so, the MOU should be available either on the above site, or on the DoHA site. Indeed, it appears there are some 38 MOUs available on the Federal Financial Relations site related to various initiatives.

Here are some general examples of current MOU publications:

http://www.health.gov.au/internet/main/p...

http://www.cmd.act.gov.au/__data/assets/...

http://www.fahcsia.gov.au/our-responsibi...

The financial details of the eHealth MOU - effectively, the funding arrangements for NEHTA - will in any event be reported to the public via Budget statements, annual reports and other statutory financial disclosures, as has been the case in previous years.

NEHTA's most recent Annual Report discloses total "member" contributions of more than $237 million for the 2011-12 financial year; "members" being each of the commonwealth, state and territory governments.

In the most recent federal Budget, the Commonwealth allocated $233.7 million for the continuation of the National e-Health program over two years to the end of 2013-14, including $67.4 million being the Commonwealth's share of NEHTA's core funding.

Other state governments have disclosed their commitments, for example, the South Australian Health Budget 2012-13 reports an allocation of $4.9 million over two years as the state's contribution to NEHTA's work program, while the Victorian Government has allocated $16 million to NEHTA over the same period.

In short, these financial details are either already in the public domain, or will be reported in the agencies' next annual reports.

And since the parties have already agreed their commitments - presumably in a binding, legal fashion - to NEHTA and its work program over the next two years, I cannot see any reason why the information should not be made available; nor why it might require extensive consultation with individual participants before release.

Therefore I request that this request for access proceed forthwith, in line with the normal expectation of general public interest grounds for disclosure.

Regards

Karen Dearne

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Karen Dearne left an annotation ()

Can anyone advise whether MOUs have the same legal standing as a National Agreement when it comes to funding/financial commitments?

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From: Karen Dearne

Delivered

Dear Department of Health and Ageing,

Can you please advise when I may expect a response to my March 18 request for the provision of the MOU without fees, on the grounds of public interest?

Yours faithfully,

Karen Dearne

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Department of Health

Dear Ms Dearne

The Freedom of Information Act 1982 provides that where an applicant has
notified an agency that a charge should be reduced or not imposed, the
agency must notify the applicant of the decision on the amount of charge
payable as soon as practicable, but in any case no later than 30 days
after the day  on which the applicant so notified the agency.  You
requested a waiver of the charges on 18 March 2013.  A decision on your
request for a waiver of charges will be sent to you by 17 April 2013.

Regards

Christine Zygadlo
FOI Case Officer
FOI Unit / Information Law Section
Ph: (02) 6289 1666

Karen Dearne To [email address],
<[FOI #63 email]> cc
Subject Re: Your FOI Requst  
02/04/2013 11:24  [SEC=UNCLASSIFIED]

     Dear Department of Health and Ageing,
   
    Can you please advise when I may expect a response to my March 18
    request for the provision of the MOU without fees, on the grounds
    of public interest?
   
    Yours faithfully,
   
    Karen Dearne
   
   

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From: Karen Dearne

Delivered

Dear Ms Zygadio

Can you please advise why I am yet to receive a decision on my request to waiver charges, which was due by April 17?

In the interim, I have noticed that Senator Sue Boyce has requested the same document through the Senate Estimates process.

See Community Affairs committee questions on notice to the Department of Health and Ageing, index number 165:

"In an answer to a written question on notice from the Estimates of October last year [WQON 361] regarding what will replace the expired National Partnership on E-Health DOHA stated that an ; "eHealth Memorandum of Understanding was agreed by the Standing Council on Health at its meeting on November 9, 2012. However, the communiqué released after that meeting stated that the Ministers had only "noted progress on the eHealth MOU."a) Can you explain this apparent inconsistency between your answer and the stated actions of the Standing Council on eHealth? b) If, as you claim a new 'eHealth MOU' is in existence could you please provide me with a copy of it?"

If the department provides a public copy of the MOU Agreement on eHealth through the Estimates process, then I shall not need to pursue this request.

But I note that responses to the Estimates QoNs were due by April 5, so the department is well overdue in responding to this issue.

I also note that Senator Boyce expresses some doubt as to the existence of the MOU agreement.

I am aware that no such agreement has been published, as required, on the Federal Financial Relations website.

Can you please advise whether the document will be made public via Estimates responses?

If not, I will pursue this request. In that event, could you please advise when I will receive a decision on the fees waiver.

Yours faithfully,

Karen Dearne

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Department of Health


Attachment FOI 175 1213 Notice of Decision reduction of charges.pdf
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Dear Ms Dearne

I understand that a notice waiving the charges was sent to you on 8 April
2103.  I am attaching a copy of that Notice for your information.  
  The decision on your request is not due until 15 May 2013.

I am unable to comment on your query regarding the release of the document
  through the Senate Estimates process.

Regards

Pat Faget
Case Officer FOI

Karen Dearne To [email address],
<[FOI #63 email]> cc
Subject Re: Your FOI Requst  
01/05/2013 10:45  [SEC=UNCLASSIFIED]

     Dear Ms Zygadio
   
    Can you please advise why I am yet to receive a decision on my
    request to waiver charges, which was due by April 17?
   
    In the interim, I have noticed that Senator Sue Boyce has requested
    the same document through the Senate Estimates process.
   
    See Community Affairs committee questions on notice to the
    Department of Health and Ageing, index number 165:
   
    "In an answer to a written question on notice from the Estimates of
    October last year [WQON 361] regarding what will replace the
    expired National Partnership on E-Health DOHA stated that an ;
    "eHealth Memorandum of Understanding was agreed by the Standing
    Council on Health at its meeting on November 9, 2012. However, the
    communiqué released after that meeting stated that the Ministers
    had only "noted progress on the eHealth MOU."a) Can you explain
    this apparent inconsistency between your answer and the stated
    actions of the Standing Council on eHealth? b) If, as you claim a
    new 'eHealth MOU' is in existence could you please provide me with
    a copy of it?"
   
    If the department provides a public copy of the MOU Agreement on
    eHealth through the Estimates process, then I shall not need to
    pursue this request.
   
    But I note that responses to the Estimates QoNs were due by April
    5, so the department is well overdue in responding to this issue.
   
    I also note that Senator Boyce expresses some doubt as to the
    existence of the MOU agreement.
   
    I am aware that no such agreement has been published, as required,
    on the Federal Financial Relations website.
   
    Can you please advise whether the document will be made public via
    Estimates responses?
   
    If not, I will pursue this request. In that event, could you please
    advise when I will receive a decision on the fees waiver.
   
    Yours faithfully,
   
    Karen Dearne
   
   

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From: Karen Dearne

Delivered

Dear case officer

Thank you for responding quickly. And please give Ms Forman my thanks for granting a fees waiver on public interest grounds.

However, I can confirm that I did not receive any notification of this decision on April 8 or subsequently; in any event, such a communication would be recorded on this website.

I look forward to receipt of the decision on my FOI request by May 15.

Yours faithfully,

Karen Dearne

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Department of Health


Attachment Decision.pdf
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Please see attached correspondence in relation to your FOI request.

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From: Karen Dearne

Delivered

Dear Ms Forman

I refer to your decision that the MoU on eHealth is an exempt document under section 47B(a) of the FOI Act.

I note that you say: "As the MoU is not yet signed by all parties and is considered not to commence until this has happened, the release of the document may pre-empt jurisdictional agreement and may cause damage to relations between the Commonwealth and a State (including a Territory)".

This is surprising news, as the previous National Partnership Agreement on E-Health, constituting joint commonwealth-state funding arrangements for the National E-Health Transition Authority's work program, expired at the end of June 2012.

A renegotiated e-health agreement was identified as a key priority for the Health Minister when Ms Plibersek took that role.

The Department of Health and Ageing advised the Senate Community Affairs committee that "the eHealth MoU, which replaces the National Partnership on E-Health, was agreed by the Standing Council on Health on 9 November 2012".

Are you advising that there is currently NO funding agreement between the parties for this purpose?

If so, on what basis is NEHTA's ongoing program being funded, and by whom?

Can NEHTA legally operate in the absence of a binding agreement between the parties?

While you say the decision to refuse the document's release is due to "the interest in preserving the efficient and proper functioning of government" - clearly this condition cannot apply, as without a signed agreement there is no "efficient and proper functioning" between the parties on the national e-health program.

Indeed, it is difficult to imagine that this agreement could go unsigned for so long - unless there are significant objections to its content by one or more of the parties.

Since hundreds of millions of dollars have been spent by Australian governments on NEHTA and various commonwealth and state e-health projects, I would suggest, quite strongly, that release "of the document in its draft state" is essential to help "inform debate on a matter of public importance" and "promote effective oversight of public expenditure".

I would appreciate a prompt response to these questions.

Regards

Karen Dearne

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Locutus Sum left an annotation ()

The questions you have asked the department ares very interesting and it would be good to know the answer to them. But the clock is running and you are wasting your time. I'm not being rude. I believe that the Deparment is not obliged to answer all your interesting questions. They do not even have to acknowledge your email.

Your rights under the FOI Act are very limited. The department rejected your request. There are now only a few things you can do. Rights 1: You can use section 54B of the Act to ask for an internal review. You must make your application within 30 days from the day you received the decision. The letter from the department was signed on 10 May 2013, but you did not get the letter until 14 May 2013. That means you have 30 days from 14 May 2013 to apply for an internal review. So you must apply no later than Thursday 13 June. Rights 2: You can ask for more time to make an application for internal review. You can do this at any time, because section 54B(2) says, "A decision by an agency to allow a further period for making an application may be made whether or not the time to make such an application has already expired." But perhaps the department will say that you cannot have additional time to make a appliication. Then you will be stuck; it is better to seek review befor 30 days has expired. Rights 3: You can accept the decision to not give you the documents.

If you decide to apply for an internal audit, I can suggest some ideas. The department claims that the document is conditionally exempt under section 47B. But it is not correct. Section 47B of the Act says that a document is conditional exempt if disclosure of the document "would or could reasonably be expected to, cause damage to relations between the Commonwealth and a State", but the department does not say that. The department say (in Appendix A): "the release of the document ... may cause damage to relations between the Commonwealth and a State". "May cause damage" is not the same as ""would, or could reasonably be expected to, cause damage". It is not the same thing at all. Have a look at the guidelines issued by the Information Commissioner at http://www.oaic.gov.au/publications/guid... . You should read carefully the paragraph "Damage to be reasonably expected." You could also argue against the silly suggestion that it would not promote debate if the document was given to you. The time for debate is before an agreement is reached, not afterwards!

Held og lykke!!

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Karen Dearne left an annotation ()

Takk fyrir, Locatus Sum

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Things to do with this request

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