Shining a Light on Hidden Information

I encourage the people of Australia to shine a bright light on this attempt to keep important information secret.

An Australian citizen has been denied a Freedom of Information request to know the names and contact information of all the people who have been officially authorized by the Australian government to participate in the negotiations being conducted by the Working Group for amendments to the International Health Regulations.

According to Sean Lane, the Assistant Secretary of the International Strategies Branch in the Australian government’s Department of Health and Aged Care, the Australian people are NOT allowed to know who is authorized to represent them at the negotiations being conducted by the Working Group for amendments to the International Health Regulations at the World Health Organization.

On 30 January 2024, an Australian citizen submitted a request for information from the Department of Health and Aged Care (the department), seeking access under the Freedom of Information Act 1982.

On 22 February 2024, the Australian citizen and the Department of Health and Aged Care agreed to modify the scope of the request to the following:

I request names and contact information of all the people who have been officially authorized to participate in the negotiations being conducted by the Working Group for amendments to the International Health Regulations.

On 1 March 2024, Sean Lane, an Assistant Secretary at the International Strategies Branch of the Australian government’s Department of Health and Aged Care DENIED the Freedom of Information request and, amongst other reasons, stated the following:

You have requested access to data that is held in computer systems ordinarily available to the department.

Pursuant to section 17 of the FOI Act, the department has used its computer systems to produce one written discrete document that contains the information you are seeking to access.

I have decided to refuse access to this document as it contains fully exempt material.

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

I have decided that the document is conditionally exempt from disclosure under section 47E of the FOI Act.

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 workplace health and safety management functions of the agency

• would not provide any benefit to the public in contacting the department in relation to this matter, as existing channels of communication are sufficient.

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;

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 exempt 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.

Read the official response below…

FOI reference: FOI 4949

Xx Xxxx Xxxxxx
By Email: xxxxxxxx@gmail.com

Dear Xx Xxxxxx,

Decision on your Freedom of Information Request

I refer to your request of 30 January 2024, to the Department of Health and Aged Care (the department), seeking access under the Freedom of Information Act 1982 (Cth) (FOI Act) to:

whether the Australian Commonwealth Government and more specifically the Department of Health and Aged Care have received notification from the World Health Organisation in accordance with Article 55 of the International Health Regulations (IHR), about the proposed amendments that are to be discussed and considered at the 77th World Health Assembly, scheduled to be held from May 27 to June 1, 2024. As it currently stands, the four month advance deadline (January 27) has already passed.

As a consequence, I request all communications/documents sent or received by any and all people in the Department of Health and Aged Care regarding the ongoing negotiations being conducted by the Working Group for amendments to the IHR, be provided please.

Furthermore, I request names and contact information of all the people who have been officially authorized to participate in the negotiations being conducted by the Working Group for amendments to the International Health Regulations.

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Clarification/Modification of scope of request

On 22 February 2024, following consultation with you, you agreed to modify the scope of your request to the following:

I request names and contact information of all the people who have been officially authorized to participate in the negotiations being conducted by the Working Group for amendments to the International Health Regulations.

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.

---

FOI decision

You have requested access to data that is held in computer systems ordinarily available to the department. Pursuant to section 17 of the FOI Act, the department has used its computer systems to produce one written discrete document that contains the information you are seeking to access.

I have decided to refuse access to this document as it contains fully exempt material. A schedule setting out the document relevant to your request, with my decision in relation to that document, is at ATTACHMENT A.

My reasons for not providing access to the document are set out in ATTACHMENT B.

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Legislative provisions

The FOI Act, including the provisions referred to in my decision, is available on the Federal Register of Legislation website: www.legislation.gov.au/Series/C2004A02562.

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.

Contacts

If you require clarification of any matters discussed in this letter you can contact the FOI Section on (02) 6289 1666 or at FOI@health.gov.au.

Yours sincerely

Sean Lane
Assistant Secretary International Strategies Branch

1 March 2024

REASONS FOR DECISION FOI-4949

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 the document 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:

1. (a)  prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;

2. (b)  prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;

3. (c)  have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;

4. (d)  have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

Paragraph 6.114 of the FOI Guidelines states that for this conditional exemption to apply, the documents must relate to either:

the management of personnel – including the broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and occupational health and safety, or

the assessment of personnel – including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.

The department has statutory obligations under the Work Health and Safety Act 2011, including a primary duty of care, so far as is reasonably practicable, to ensure that persons are not put at risk from work carried out as part of the conduct of the department. It is the aim of the department’s Work Health and Safety framework to protect workers and other persons against harm to their health, safety and welfare through elimination or minimisation of risks arising from work, and release of such information could cause harm to their physical and mental wellbeing.

I am satisfied that disclosure of the personal information of public servants contained in the document relevant to your request may substantially and adversely affect the department’s ability to meet its statutory obligations under the WHS Act. There is therefore a protective element to my decision to ensure that departmental staff are not subjected to inappropriate risks or harm.

I am satisfied that, because of the nature of the work performed by the public servants whose names and contact details are included in the document, disclosure of that information may pose a risk to the health and safety of those staff.

The response to the COVID-19 pandemic is a divisive issue within some elements of the community, both within Australia and globally. There has been protest activity outside the department’s buildings in Canberra on several occasions which has required police attendance. In addition, Australian members of parliament have been targets of violence and threats in this regard. The Victorian Department of Parliamentary Services referenced in its 2020-21 annual report, that Ministers of Parliament and their staff had been “frequently targeted by protest activity”, and security incidents were growing significantly. For the 2020-21 year in the state of Victoria, Parliamentary security responded to 112 incidents at ministerial offices, up 124 per cent on the previous year. Furthermore, both the former Premier of Western Australia and the former Chief Minister of the Northern Territory have been subjected to threats of violence, both to themselves personally and to their families. In the case of the threats to the former Premier of Western Australia, these resulted in two members of the community being charged with criminal offences.

The COVID-19 pandemic has seen an increase in single issue and grievance fuelled harassment, animosity and in some instances, violence, towards those who are actively involved in the government’s response to it. As such, there is a protective element to my decision.

I am mindful that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act.

The department provides support and information to the Australian community and has many external facing contact points including phone and email addresses for the community to contact the department in a safe and efficient way. These general contact details are readily available, including being published on the department’s website.

These specific channels of communication have been put in place to enable the department to effectively manage its resources and protect the wellbeing of its staff. They are resourced to manage enquiries from members of the public, with staff appropriately trained to manage these types of enquiries. It is reasonable to expect that if these channels of communication were by-passed, the department would experience a diversion of its resources, and in addition the management functions of the agency and its personnel would be detrimentally impacted.

I am mindful that the exposure to which staff should be subjected, should be proportionate not merely to their work level but to the environment in which their specific functions take place. I am satisfied that the department has a reasonable obligation to afford employees whose details appear in the document an assurance of workplace health and safety that is proportionate to their functions and the environment in which their functions take place.

I am satisfied that the information in the document relates to staff performing lawful and proper functions but in an environment of heightened risk that makes their functions subject to the department’s workplace health and safety responsibilities.

I am satisfied that the release of the document would, or could reasonably be expected to, have a substantial adverse effect on the department’s ability to manage the workplace safety of its personnel.

For the reasons outlined above, I have decided that the document is conditionally exempt from disclosure under section 47E of the FOI Act.

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 document 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

• would not promote effective oversight of public expenditure, and

• would not allow you access to 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 workplace health and safety management functions of the agency

• would not provide any benefit to the public in contacting the department in relation to this matter, as existing channels of communication are sufficient.

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.

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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 exempt 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.

Below is information that is available in the public domain.

SEVENTY-SIXTH WORLD HEALTH ASSEMBLY

PROVISIONAL LIST OF DELEGATES AND OTHER PARTICIPANTS ACCORDING TO INFORMATION RECEIVED AS AT 20 MAY 2023 AT 12:00

Chief Delegate - Chef de délégation

Professor P. Kelly Chief Medical Officer, Department of Health and Aged Care

Deputy Chief Delegate - Chef adjoint de la délégation

Mr B. Exell Deputy Secretary, Department of Health and Aged Care

Delegate - Délégué

Dr L. De Toca First Assistant Secretary, Global Health Divsion, Department of Foreign Affairs and Trade

Alternate - Suppléant

Mr T. Power Assistant Secretary, International Strategy Branch, Department of Health and Aged Care

Ms F. Davies Assistant Secretary, Multilateral Health Branch, Department of Foreign Affairs and Trade

Mr J. Acacio Senior Health Adviser, Permanent Mission, Geneva

Mrs M. Heyward Senior Adviser, Health, Permanent Mission, Geneva

Ms C. Sturrock Counsellor, Permanent Mission, Geneva

Ms L. Corbett Director, International Strategy Branch, Department of Health and Aged Care

Ms S. Ferguson Director, WHO and Global Health Reform Section, Department of Foreign Affairs and Trade

Ms R. O'Hehir Assistant Director, Multilateral Health Branch, Department of Foreign Affairs and Trade

Advisor - Conseiller

Ms J. Back Intern, Permanent Mission, Geneva

Ms P. Sabet Intern, Permanent Mission, Geneva

SOURCE:

https://apps.who.int/gb/ebwha/pdf_files/WHA76/A76_DIV1-en.pdf

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