1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Department of Education (the Department) of 22 March 2021. I substitute my decision that:
   • documents 2 and 3 are not exempt under s 45
   • documents 1, 2 and 3 are not exempt under s 47(1)(b)
   • the material in the documents which the Department maintains is conditionally exempt under s 47F is not personal information and is not conditionally exempt under s 47F
2. Within 28 days of this decision:
   • the Department must provide the applicant with a copy of the documents, and
   • the Department must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision mainly discusses whether documents relating to the Literacy and Numeracy Test for Initial Teacher Education (LANTITE) are confidential and/or contain commercially valuable information which would be diminished by disclosure. It is primarily of interest to the parties to the IC review.

1. The applicant applied to the respondent for access[1] to:

Data on LANTITE test participation and performance sent to dandolopartners in April 2019 (referred to in the implementation review final report, p.36) excluding: • draft and internal working documents • email correspondence.

2. As noted on the Department's website[2], prior to graduation, all students enrolled in an Australian accredited initial teacher education course are expected to sit and meet the LANTITE standard to demonstrate that they possess personal literacy and numeracy skills within the top 30 per cent of the Australian adult population.
3. The Department's decision of 22 March 2021 (the decision under review) identified three documents (comprising 177 pages) in response to the request. Document 1 is an administrative report prepared by the Australian Council for Educational Research (ACER) about the operation of the first LANTITE test window for 2019. Documents 2 and 3 are technical reports also developed by ACER. In its decision the Department found material in the documents to be exempt under ss 45, 47(1)(b) and 47F.
4. The issues to be decided in this Information Commissioner review (IC review) are:
   • whether documents 2 and 3 are exempt under s 45
   • whether documents 1, 2 and 3 are exempt under s 47(1)(b)
   • whether material in the documents is conditionally exempt under s 47F of the FOI Act, and if so, whether giving the applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).
5. 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.[3]
6. In making my decision, I have had regard to the following:
   • the Department's original decision and reasons for decision of 29 January 2021
   • the decision under review
   • the documents at issue
   • the LANTITE data protocols and deeds
   • the FOI Act[4]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[5] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[6] and
   • the parties' submissions.

1. The Department maintains documents 2 and 3 are exempt under s 45.
2. Section 45 of the FOI Act provides that a document is an exempt document 'if its disclosure under this Act would found an action, by a person (other than an agency of the Commonwealth), for breach of confidence'.
3. The FOI Guidelines explain that for s 45 to apply, the following five criteria must be satisfied:
   • the information must be specifically identified
   • the information must have the necessary quality of confidentiality
   • the information must have been communicated and received on the basis of a mutual understanding of confidence
   • the information must have been disclosed or threatened to be disclosed, without authority, and
   • unauthorised disclosure of the information has or will cause detriment.[7]

Whether the information was communicated and received on the basis of a mutual understanding of confidence

1. As the FOI Guidelines explain, for s 45 to apply to a document, the information in it must have been communicated and received on the basis of a mutual understanding of confidence. Such a mutual understanding can exist even if a person is legally obliged to provide the information to the agency. The receiving agency's actions may indicate that the agency accepted an obligation of confidence - for example by marking a document as confidential.[8]
2. The applicant submitted that the relevant contract notice on Austender[9] does not specify that the contract or outputs are confidential. The Department acknowledged this but submitted the LANTITE data protocols (the protocols) and deeds between the Department and relevant stakeholders, which administer how stakeholders may use and disclose the data, provide evidence that the documents were provided and received on a mutual understanding of confidence.
3. The applicant submitted the protocols preclude the publication of data that could identify individual test-takers or higher education providers. The applicant noted that, with this exception, the protocols are intended to facilitate access to test data and that parties other than the identified stakeholders in the protocols may have both an interest in test data and a right to it. The applicant noted that to facilitate such access, the Commonwealth of Australia retains the right to publish test data.[10]
4. Having examined the protocols and deeds, as well as unedited copies of the relevant documents, and considered the submissions, I do not consider the Department has met its onus to demonstrate that the documents were communicated and received on the basis of a mutual understanding of confidence.
5. In its submissions the Department has relied substantially on the obligations set out in the protocols and deeds. Based on my review of these documents I accept that they limit how other stakeholders may disseminate, use and publish the data, however, they do not impose the same obligations on the Department[11]. The Department administers the arrangements, and the confidentiality obligations under the deeds are owed to the Department. In addition, as the applicant noted, the Commonwealth retains the right under the protocols to publish the data. In these circumstances, I am not satisfied that the deeds and protocols evidence a mutual understanding of confidence.
   1. As I have found that the Department has not met its onus to demonstrate this criterion is satisfied, it is unnecessary for me to consider the remaining criterion.

1. For the above reasons I consider the relevant documents are not exempt under s 45.

**_Documents disclosing commercially valuable information

1. The Department found the three documents to be exempt in full under s 47(1)(b).
2. The Department consulted ACER under s 27 of the FOI Act at the time of its decision, and ACER objected to the release of the documents.
3. In summary, ACER submitted that the format, structure and content of ACER technical reports is known only to a limited number of ACER's clients. ACER also noted that the analysis and methodologies used to develop the data contained in the technical reports can only be applied by a handful of specialist assessment organisations around the world and, accordingly, ACER's capabilities in this respect are a source of competitive advantage.[12]
4. ACER noted that much of the data included in the reports is generated by systems developed by ACER and disclosure of the reports may allow a competitor to make use of the functionality of ACER's trademarked software.
5. In summary, the applicant submitted:
   • The Department's statements about whether ACER has competitors seem contradictory if the data in the reports can only be applied by a small number specialist organisations.
   • The applicant noted that another contract notice related to the LANTITE test[13] states that the procurement was by limited tender but does not give a reason for the limited tender.
   • ACER's psychometric processes and procedures and methodologies have previously been disclosed in the NAPLAN 2023 Technical Report, which describes these in a similar context. The results of this analysis are documented in Appendix B of the report, which stretches for 604 pages. It is unclear why information about ACER's LANTITE methodology could not be shared publicly as has been done with their NAPLAN methodology.
6. The Department submitted (in summary), the reason for the limited tender is a reference to paragraph 10.3 of the Commonwealth Procurement Rules which refers to an absence of competition for technical reasons. This supports the Department's finding that the material in the documents has a commercial value to ACER that would, or could reasonably be expected to be, destroyed or diminished if the information were disclosed because other organisations could use the information to expand into new markets.
7. I have considered ACER's submissions and have reviewed the NAPLAN report which the applicant provided. While there appear to be some similarities between the reports in a general sense, I accept there are differences in relation to their subject matter, scope and purpose, as well as the extent of ACER's involvement. I also accept ACER's submission that NAPLAN is intended to be public facing whereas LANTITE is not. This is evident from the steps the Department has taken to establish protocols and deeds with relevant stakeholders to administer how the stakeholders may disseminate, use and publish test data.
8. However, it is not apparent on the face of the deeds and protocols that these arrangements are intended to address concerns related to the impact of disclosure on the commercial value of information generated by ACER. Despite the Department's central role in administering the protocols and deeds, the Department advised that ACER is best placed to comment upon the nature and conduct of its commercial activities.
9. ACER submitted that much of the data included in the reports is generated by systems developed by ACER and disclosure may allow a competitor to make use of the functionality of ACER's trademarked software. However, ACER has not explained in detail how this would be likely to occur in the context of the particular documents, noting that parts of the documents are comprised of test data about test candidates (as opposed to information about ACER methods or systems). In these circumstances, where the Department has applied s 47(1)(b) to the documents on a global basis, and the documents are several years old, I am unable to be satisfied that all of the material in the documents has commercial value which could reasonably be expected to be destroyed or diminished by its disclosure.

1. The Department maintains certain discrete information related to test candidates is exempt under s 47F.
2. The applicant did not object to the deletion of personal information from the documents. Rather, they submitted the Department has not explained why material cannot be discretely deleted (noting the Department has refused access to the documents in full under several provisions).
3. 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)).

1. 'Personal information' under the FOI Act has the same meaning as the equivalent term in the Privacy Act 1988 (Privacy Act).[14] That definition is set out in Annexure A.
2. In its internal review decision, the Department found the material to be personal information because:
   • Document 1 contains data about incidents which occurred during the test, broken down by the test centre and including details about the number of incidents reported, the incident type and resolution or action taken in response. Document 1 also contains a table providing a summary of attendance for the first 2019 test window. This data is broken down by the candidates' higher education provider.
   • Documents 2 and 3 contain data which specifies the demographic characteristics and performance levels of candidates. In some cases, this data is further broken down into differential test and item functioning between candidates with certain characteristics including comparisons between gender, age, geographic location, program type by year level, course category, indigeneity and English as a first language.
   • In some circumstances, the data in documents 1, 2 and 3 relates to a very small number of individuals (with some numbers as low as one).
3. Based on my review of the submissions and the content and context of the documents at issue, I am not satisfied that the material is personal information. The documents are deidentified and do not identify individuals by name. Though I acknowledge the relevant parts of the documents relate to small numbers of individuals, the Department has not provided sufficient particulars or evidence to satisfy me that they would be reasonably identifiable from the information in the documents. This is not apparent to me from my review of the documents. In my view this material is not personal information in the circumstances.

1. For the above reasons I consider the relevant material is not personal information in the circumstances and is not conditionally exempt under s 47F

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 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.

The exemption in s 45(1) does not apply to a document that is conditionally exempt under s 47C(1) (deliberative matter), or would be conditionally exempt but for s 47C(2) or 47C(3), and that is prepared by a minister, ministerial staff or agency officers unless the obligation of confidence is owed to persons other than the minister, ministerial staff or agency officers. For more information about the s 47C conditional exemption see Part 6 of these Guidelines.

The exemption operates as a separate and independent protection for confidential relationships which may, but need not necessarily, also fall within the scope of other specific exemptions, for example, ss 47F (personal privacy) and 47G (business documents).

A breach of confidence is the failure of a recipient to keep confidential, information which has been communicated in circumstances giving rise to an obligation of confidence. The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.

The exemption in s 45 is restricted in scope to the disclosure of information that would found an action for breach of confidence. It does not apply to confidential information per se, or to the disclosure of confidential information that would found another type of action such as an action based on the tort of negligence or a breach of statutory duty.

While the existence of either a statutory or contractual obligation of confidence may support the existence of an equitable obligation of confidence for the purpose of s 45, it is not of itself determinative. All 5 criteria (see [5.189] below) must also apply to the information. The existence of either a statutory or a contractual obligation of confidentiality should be considered in the context of those 5 criteria.

To found an action for breach of confidence (which means s 45 may be applied by an agency or minister), the following 5 criteria must be satisfied in relation to the information:

• it must be specifically identified
• it must have the necessary quality of confidentiality
• it must have been communicated and received on the basis of a mutual understanding of confidence
• it must have been disclosed, or threatened to be disclosed, without authority
• unauthorised disclosure of the information has or will cause detriment.

A breach of confidence will not arise, and the exemption will not apply, if the information to be disclosed is an 'iniquity' in the sense of a crime, civil wrong, or serious misdeed of public importance which ought to be disclosed to a third party with a real and direct interest in redressing such crime, wrong, or misdeed.

The alleged confidential information must be identified specifically. It is not sufficient for the information to be identified in global terms. For example, where a document contains information that is claimed to be confidential, that information must be specifically identified either in terms of the subject matter or the type of information, or the relevant sentences or paragraphs in which that information appears. Alternatively, if all of the document is claimed to be confidential, identification will be in terms of clearly identifying the relevant document.

For the information to have the quality of confidentiality it must be secret or only known to a limited group. Information that is common knowledge or in the public domain will not have the quality of confidentiality. For example, information that is provided to an agency and copied to other organisations on a non-confidential or open basis may not be considered confidential.

The quality of confidentiality may be lost over time if confidentiality is waived or the information enters the public domain. This can occur if the person whose confidential information it is discloses it. However, even if information has entered the public domain it may not have lost its confidential character unless it has become public knowledge such that, as a matter of common sense, the confidential character of the information has disappeared. The obligation of confidence may also only relate to a limited time period.

The information must have been communicated and received on the basis of a mutual understanding of confidence. In other words, the agency or minister needs to have understood and accepted an obligation of confidence. The mutual understanding must have existed at the time of the communication. For example, when a person gives information to an agency or a minister they may ask that it be kept confidential and if the agency or minister accepts the information on that basis the requirement for a mutual understanding of confidence will be met. However, if the agency or minister declines to accept the information on that basis (and communicates this to the person) the understanding of confidence will not be mutual.

A mutual understanding of confidence can exist even if a person is legally obliged to provide the information to the agency. On the other hand, if an agency or minister has a statutory obligation to publish or release specified information, that obligation will outweigh any undertaking by the agency or minister to treat the information confidentially, and therefore is inconsistent with any mutual understanding of confidence.

Whether the agency or minister accepted an obligation of confidence and is maintaining that obligation may be clear from an agency's or minister's actions. For example, an agency or minister may mark a document as confidential, keep it separate from documents that are not confidential and ensure that the material is not disclosed to third parties without consent.

An obligation of confidentiality may be express or implied. An express mutual understanding may occur where the person providing the information asks the agency or minister to keep the information confidential and the agency or minister assures them that they will. Agency practices may illustrate how an implied mutual understanding may arise. For example, if an agency has policies and procedures in place for dealing with commercial-in-confidence information and those policies and procedures are known by the business community, it may be implied that when a business provides such information to that agency it will be on the basis of confidentiality.

Unauthorised disclosure or threatened disclosure

The information must have been disclosed or been threatened to be disclosed without authority. The scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised.

For example, the agency or minister may have told the person providing the information about the people to whom the information will usually be disclosed. The law may require disclosure to third parties in the performance of an agency's functions, which will amount to an authorised use or disclosure. Similarly, a person providing confidential information to an agency or minister may specifically permit the agency or minister to divulge the information to a limited group of people.

Compliance with a statutory requirement for disclosure of confidential information will not amount to an unauthorised use and will not breach confidentiality.

The fifth element for a breach of confidence action is that unauthorised disclosure of the information has, or will, cause detriment to the person who provided the confidential information. Detriment takes many forms, such as threat to health or safety, financial loss, embarrassment, exposure to ridicule or public criticism. The element of detriment applies only to private persons and entities, not government.

The Administrative Appeals Tribunal applied this element in numerous cases, but whether it must be established is uncertain. The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused. Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.[15]

(1) A document is an exempt document if its disclosure under this Act would disclose:

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.

It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved. The information need not necessarily have 'exchange value', in the sense that it can be sold as a trade secret or intellectual property. The following factors may assist in deciding whether information has commercial value:

• whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
• whether the information confers a competitive advantage on the agency or person to whom it relates - for example, if it lowers the cost of production or allows access to markets not available to competitors
• whether a genuine 'arm's-length' buyer would be prepared to pay to obtain that information
• whether the information is still current or out of date (out of date information may no longer have any value)
• whether disclosing the information would reduce the value of a business operation or commercial activity - reflected, perhaps, in a lower share price.[16]

The second requirement of s 47(1)(b) - that it could reasonably be expected that disclosure of the information would destroy or diminish its value - must be established separately by satisfactory evidence. It should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known. Nor is it sufficient to establish that an agency or person would be adversely affected by disclosure; for example, by encountering criticism or embarrassment. It must be established that the disclosure would destroy or diminish the commercial value of the information.[17]

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.[18]

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.

[1] This was the applicant's revised request. The applicant revised their request on several occasions after making their initial request.

[2] Literacy and Numeracy Test for Initial Teacher Education - Department of Education, Australian Government (accessed on 17/3/25)

[4] Sections 11A, 11B, and 47F set out in Annexure A.

[5] 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).

[8] FOI Guidelines at [5.194] - [5.197].

[9] Contract notice CN3322415.

[10] In addition the applicant submitted that the Australian public, and their elected representatives, are stakeholders not identified in the Protocols with an interest in the data and a right to access to it. Wider access to test data can facilitate independent expert analysis of any potential misinterpretations or misuses of test data.

[11] For example, the protocols note the Commonwealth retains the right to publish test data.

[12] The applicant and the Department made various submissions about issues related to various other contracts. Given these either predate or post-date the documents at issue in this IC review, I have not considered them in detail in this case. The parties also made submissions about the extent to which s 47(1)(a) covers impacts that may lead to new competitors. In making my decision, I have adopted an interpretation that is consistent with the wording of the provision.

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

[15] FOI Guidelines at [5.183] to [5.202] [footnotes omitted].

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