1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the internal review decision of the Department of the Prime Minister and Cabinet (the Department) of 13 April 2021.

1. This decision discusses the application of s 47F of the FOI Act to documents provided by a named individual to the Department in relation to General Electric's humanitarian operation in Banda Aceh. It is primarily of interest to the parties in relation to the specific documents sought.

1. The applicant applied to the Department for access to documents provided by a named individual to the Department in relation to the Australian contingent to General Electric's humanitarian operation in Banda Aceh.
2. On 15 March 2021, the Department identified nine documents relevant to the applicant's request and decided to refuse access to all nine documents in full. In making its decision, the Department relied on the personal privacy exemption (s 47F) of the FOI Act.
3. On 17 March 2021, the applicant sought internal review of the Department's decision. The applicant clarified that they did not seek access to the names of individuals.
4. On 13 April 2021, the Department affirmed its original decision on internal review.
5. On the same day, the applicant sought Information Commissioner Review (IC review) of the Department's internal review decision.
6. The issue to be decided in this IC review is whether the material that the Department maintains is exempt under s 47F is conditionally exempt under this provision, and if so, whether disclosure of conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).
7. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[1]
8. In making my decision, I have had regard to the following:
   • the Department's decision and reasons for decision of 15 March 2021 and its internal review decision and reasons for decision of 13 April 2021
   • the documents at issue
   • the FOI Act[2]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[3] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[4] and
   • the parties' submissions.

1. A document or material will be exempt under this conditional exemption if it contains 'personal information'; disclosure in response to the applicant's FOI request would be 'unreasonable' (s 47F(1)); and it would be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).
2. The FOI Guidelines relevantly state that the test of 'unreasonableness' in s 47F 'implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals'.[5]

Whether the material contains personal information

1. 'Personal information' under the FOI Act has the same meaning as the equivalent term in the Privacy Act 1988.[6] That definition is set out in Annexure A.
2. The Department explained that the relevant material pertains to information provided by a third party and comprises their submissions, correspondence and statements associated with the Australian contingent to the General Electric humanitarian operation in Banda Aceh. The Department submits that the documents contain personal information of reasonably identifiable individuals.
3. Based on my examination of the documents, I accept the Department's characterisation of the relevant material. It is apparent that this material comprises information and opinions about various individuals who are identifiable or reasonably identifiable.
4. Accordingly, I find that this material is personal information for the purposes of s 47F(1) of the FOI Act.

Whether disclosure would involve an unreasonable disclosure of personal information

1. In their submissions, the applicant alleged that false or misleading statements, information or documents were provided to the Department with respect to the Department's decision to award certain Humanitarian Overseas Service Medals.
2. The applicant also referred to a memoir titled 'Warrior Brothers' by Keith Fennell, together with correspondence from various third party individuals involved in the relevant operation. The applicant claims that information in the memoir and correspondence supports their contention that false information was provided to the Department during the assessment for awarding the Humanitarian Overseas Service Medals. The applicant submits that on this basis, disclosure of the documents would not be an unreasonable disclosure of personal information, as it would reveal the alleged fraud and corruption.
3. Additionally, the applicant alleges that offences under the Commonwealth Criminal Code Act 1995 have been committed, and disclosure of the documents would assist in establishing those offences.
4. In response to the applicant's submissions, the Department denies that there has been any criminal wrongdoing. The Department acknowledged that although there would be a public interest in disclosure of information that would reveal criminal conduct, this is not applicable to the documents in this case.
5. The Department submits that there is a prevailing public interest in protecting the privacy of individuals, and that the information in the documents was obtained for the purpose of considering honours awards for meritorious actions. The Department further explained that there is an inherent public interest in providing a confidential process for the consideration of the actions of Australians for honours and awards.
6. The Department further submits that disclosure of the documents would be unreasonable because:
   • the personal information may not be well known
   • the individuals to whom the information relate may not be known to be, or to have been, associated with the matters dealt with in the documents
   • the personal information may not be available from publicly accessible sources
   • an individual concerned has objected to the disclosure of their personal information
   • the personal information was not provided to the Department on the understanding that it would be made public
   • the personal information may be sensitive
   • the author of the documents is identifiable, and
   • the documents contain third party personal information.
7. The Department explained that although disclosure of the information may advance the public interest in government transparency and integrity, this is outweighed by the privacy interests of the individuals.

1. While I accept the applicant's contention that disclosure of the relevant material would provide transparency in relation to the information that was provided to and considered by the Department, which could potentially be used to establish whether false or misleading information was provided to the Department, any public benefit in transparency must be balanced against the privacy interests of the individuals concerned.
2. Based on my consideration of the documents, it is apparent that the relevant material pertains to the actions and circumstances of various individuals, as well as the recollection of events by the named individual. Having regard to the context of this information, I accept that even if the names of the individuals are redacted, disclosure of the relevant material could reasonably be expected to reveal the identities of the individuals to whom the information relates.
3. Further, it is apparent that the identities of the individuals, as well as the fact that they are associated with the content of the documents, are not known more broadly, nor would they have expected that their personal information would be publicly disclosed.
4. Having regard to the parties' submissions, I consider that the following factors weigh significantly against disclosure of the personal information contained in the documents:
   • the personal information is not well known or publicly available - in particular, the individuals are not widely known to be associated with the matters raised in the documents
   • the individuals concerned have not consented to disclosure of their personal information
   • it is apparent from the nature and content of the documents that the individuals concerned would not have expected that their personal information would be disclosed more broadly.
5. In weighing the relevant factors, I consider that disclosure of the documents would involve an unreasonable disclosure of personal information, as the privacy interests of the third party individuals outweigh the factors in favour of disclosure in this case.

1. I find that the relevant material is conditionally exempt under s 47F.

Whether access would be contrary to the public interest (s 11A(5))

1. Having found the material to be conditionally exempt under s 47F of the FOI Act, I am required to consider whether it would be contrary to the public interest to give the applicant access to conditionally exempt material at this time. The requirements of the public interest test are set out at Annexure A. I have considered the relevant mandatory factors listed in s 11B(3) of the FOI Act. I have not considered the irrelevant factors as set out in s 11B(4) of the FOI Act.[7] In considering the public interest, I have had regard to the parties' submissions.
2. As I have discussed above, the applicant raised a number of concerns regarding the administration of the Humanitarian Overseas Service Medals program - namely the provision of false or misleading statements to the Department, which the Department subsequently took into consideration when deciding to award the medals.
3. The applicant essentially contends that disclosure of the relevant material would inform debate on a matter of public importance by allowing or assisting inquiry into possible deficiencies in the conduct or administration of the Humanitarian Overseas Service Medals program. The applicant also contends that disclosure would allow for transparency in relation to the information that was provided to the Department, which could be useful or material in establishing the commission of an offence. Additionally, the applicant contends that disclosure would also promote the objects of the FOI Act, and allow for the effective oversight of public expenditure.
4. I accept that disclosure of the documents would promote the objects of the FOI Act and provide further insight and transparency into the information that was considered by the Department prior to its decision to award the medals. I give these factors moderate weight.
5. The applicant also raised a number of concerns relating to the Department's handling of their FOI request. Based on my consideration of the applicant's submission and the content of the documents, I am not satisfied that the applicant's concerns regarding the Department's handling of the FOI request is relevant to the question of whether disclosure of conditionally exempt material would be contrary to the public interest.
6. With respect to the factors against disclosure, the Department identified the following factors as relevant, whereby disclosure would:
   • undermine public confidence in the Department's management of personal information, and
   • prejudice the protection of individuals' rights to privacy.
7. The relevant material comprises the personal information of a number of individuals. I am satisfied that the identities of these individuals are not broadly known, and the individuals have not consented to the disclosure of their personal information, nor would they have expected that their personal information would be publicly disclosed by the Department. Accordingly, I give significant weight to these factors against disclosure.
8. In balancing the public interest factors, I am satisfied that the factors against disclosure outweigh the factors in favour of disclosure in this case.

1. For the reasons set out above, I am satisfied that disclosure of the documents would be contrary to the public interest at this time.
2. The documents are exempt from disclosure.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Section 47F of the FOI Act states 'A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).'

Section 4(1) of the FOI Act states 'personal information' has the same meaning as the Privacy Act 1988, which provides:

personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a) whether the information or opinion is true or not; and

(b) whether the information or opinion is recorded in a material form or not.[8]

Section 47F(2) of the FOI Act states that in determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister decision maker must have regard to the following matters:

• the extent to which the information is well known
• 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
• the availability of the information from publicly available sources, and
• any other matters that the agency or Minister considers relevant.

As discussed in the FOI Guidelines and IC review cases,[9] the main requirements of this public interest conditional exemption are that a document contains 'personal information;' disclosure in response to the applicant's FOI request would be 'unreasonable' (s 47(1)); and it would be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).

The FOI Guidelines explain that the test of 'unreasonableness' in s 47F 'implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals'.[10]

In addition to the mandatory factors outlined at s 47F(2) of the FOI Act, the FOI Guidelines explain that other relevant factors include:

a) the author of the document is identifiable

b) the document contains third party personal information

c) release of the document would cause stress to the third party

d) no public purpose would be achieved through release.

• the nature, age and current relevance of the information
• any detriment that disclosure may cause o 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 or minister'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 request 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.[11]

The last-mentioned factor - the public interest in government transparency and integrity - is to be balanced with all other relevant factors arising in the particular case, including the private interest that third party individuals may have in maintaining privacy of their personal information.[12]

Section 11A(5)of the FOI Act states the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Section 11B(3) of the FOI Act sets out a non-exhaustive list of public interest factors favouring disclosure for consideration, those factors being where disclosure of the document would do any of the following:

(c) promote effective oversight of public expenditure

(d) allow a person access to their personal information.

Section 11B(4) of the FOI Act also lists the following irrelevant factors that must not be taken into consideration when deciding whether access would, on balance, be contrary to the public interest:

(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.

In addition to the factors set out at s 11B(3) of the FOI Act, the FOI Guidelines set out a further non-exhaustive list of public interest factors in favour of disclosure, as well as public interest factors against disclosure.[13]

To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies based on the particular facts at the time the decision is made.[14]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[2] Sections 11A and 47F set out in Annexure A.

[3] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[6] Privacy Act 1988 s 6(1) (definition of 'personal information').

[8] Section 6(1) of the Privacy Act 1988 (Cth) (emphasis in original).

[9] Generally, see FOI Guidelines at [6.119] - [6.155]; 'AEE' and Department of Defence (Freedom of information) [2023] AICmr 69; 'AED' and Australian Criminal Intelligence Commission (Freedom of information) [2023] AICmr 67; 'OE' and Australian Taxation Office (Freedom of information) [2018] AICmr 29.

[11] FOI Guidelines at [6.137] - [6.138] (footnotes omitted).

[13] FOI Guidelines at [6.229] - [6.233].

[14] FOI Guidelines at [6.238] (footnote omitted).