Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982**

Freedom of Information - Access grant - Whether disclosure would unreasonably affect an organisation in respect of its lawful business affairs - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 11A and 47G

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Tertiary Education Quality and Standards Agency (the respondent).[1] I substitute my decision as set out below and in Annexure A as relevant to particular documents.

1. This decision involves a review of a decision to grant access to documents related to the IC review applicant's registration and/or accreditation with the respondent. The decision sets aside parts of the decision under review in circumstances where the respondent agreed, and the decision maker was satisfied based on the submissions, that the material was conditionally exempt under s 47G and disclosure would be contrary to the public interest.[2]

1. In summary, the FOI applicant requested access to documents, which included (at rows 2, 2A and 3 of the FOI request), any applications made by the IC review applicant for registration and or accreditation under music and entertainment related bachelor programs.[3]
2. The respondent initially consulted the IC review applicant about several documents under s 27 of the FOI Act (allowing exemption contentions to be made under ss 47 or 47G of the FOI Act).
3. In its original decision, the respondent identified 983 relevant documents and decided to grant full and partial access to some documents and withhold others in full.[4]
4. On 20 January 2023, the IC review applicant applied for internal review. The respondent made an internal review decision on 20 February 2023, varying its original decision (the decision under review).[5]
5. The IC review applicant requested the respondent 'reconsider' its internal review decision on 9 March 2023 on the basis that its decision on access was inconsistent with respect to duplicate or similar versions of documents. In response, the respondent corrected some typographical errors in the document schedule which recorded incorrect decisions against some of the documents. The respondent advised the IC review applicant that it was not otherwise open to it to review its decision further.
6. The IC review applicant sought Information Commissioner (IC) review of the decision on 22 March 2023. The IC review applicant alleged that access to particular documents proposed for release (documents at issue - see Annexure A) should be refused under ss 47 or 47G, on the basis that the respondent had refused access to other documents of the same or similar nature.[6]
7. On 5 April 2024 the Office of the Australian Information Commissioner (OAIC) wrote to the FOI applicant to notify them of the IC review. The FOI applicant requested to be joined as a party to the IC review on 11 April 2024. The OAIC subsequently added the FOI applicant as a party to the IC review under s 55A of the FOI Act[7].
8. In these circumstances, the issue to be decided in this IC review is whether the material which the IC review applicant maintains is conditionally exempt under s 47G of the FOI Act is conditionally exempt under that provision, and if so, whether giving the FOI applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).
9. While I note the IC review applicant and the respondent agreed document 487 (which the respondent found to be exempt) is not exempt under s 47, given this is a review of the respondent's decision to grant access to certain documents (rather than of its access refusal decision), this issue is out of scope of the IC review.
10. In an IC review of an access grant decision, the IC review applicant bears the onus of establishing that a decision refusing the request is justified or that I should give a decision adverse to the FOI applicant.[8]
11. In making my decision, I have had regard to the following:
    • the respondent's decision and reasons for decision of 20 December 2022
    • the respondent's internal review decision and reasons for decision of 20 February 2023
    • the proposed 55F agreement
    • the documents at issue
    • the FOI Act[9]
    • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[10] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[11] and
    • the parties' submissions.

1. A document will be conditionally exempt if it discloses information (business information) concerning the business, commercial or financial affairs of an organisation or undertaking, where the disclosure of the business information would, or could reasonably be expected to:
   • unreasonably affect the organisation adversely in respect of its lawful business, commercial or financial affairs (s 47G(1)(a)), and
   • it would be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).
2. The IC review applicant submits that the respondent refused access to other documents of the same or similar nature under s 47G. In their application, the IC review applicant stated:

TEQSA's decision contains inconsistencies in relation to information that is of the same or substantively the same character and type, such that TEQSA has determined that documents containing comparable information are exempt from access under the Freedom of Information Act 1982 (FOI Act) in some cases but has granted access in other cases. The upshot of this is that TEQSA's decision is internally inconsistent and results in access being granted to documents that are properly characterised as exempt. TEQSA's position is that it is not able to address these inconsistencies following its internal review decision.

3. The IC review applicant's submissions include a table which identifies several documents which the respondent decided to release which are similar to documents which the respondent found are exempt.
4. In its consultation response to the respondent, the IC review applicant noted the documents contain commercially sensitive and/or confidential information. The disclosure of this information would, or could reasonably be expected to, put them at a material competitive disadvantage and as a result unreasonably affect them adversely in respect of their business, commercial and financial affairs.
5. It is apparent from my review of the documents[12] and their context that the documents are the IC review applicant's business information. The question is then whether disclosure of the business information would, or could reasonably be expected to unreasonably affect the organisation adversely in respect of its lawful business, commercial or financial affairs.
6. I have reviewed the proposed agreement, the submissions and the relevant documents at issue. In reaching my view that disclosure of the business information would, or could reasonably be expected to have this impact, I have given weight to the IC review applicant's submissions on the basis that the respondent no longer disputes their submissions and agrees that the relevant documents are exempt under the FOI Act. I also note the IC review applicant did not provide substantive submissions on the proposed agreement despite being given opportunities to do so. [13]
7. As discussed in the FOI Guidelines, assessing whether the impact is unreasonable requires me to balance the public and private interest factors. On balance, I consider the private interests of the IC review applicant outweigh the public interest factors and that the impact claimed by the IC review applicant (as described above at [17]) would be unreasonable in the circumstances.
8. For the above reasons, I consider disclosure of the material in the documents (as set out in Annexure A) would or could reasonably be expected to unreasonably affect the IC review applicant adversely in respect of its lawful business, commercial or financial affairs (s 47G(1)(a)).

1. I am satisfied that the material in the documents (as set out in Annexure A) is conditionally exempt under s 47G(1)(a) of the FOI Act.

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

1. Having found the material in the relevant documents to be conditionally exempt under

s 47G of the FOI Act, I am required to consider whether it would be contrary to the public interest to give the FOI 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.[14] 2. In its internal review decision, the respondent considered the documents reveal the reasons for government decisions, including contextual information, and their disclosure enhances the scrutiny of government decision making. 3. In its initial consultation response, the IC review applicant submitted that releasing the documents would, on balance, be contrary to the public interest for the purpose of

s 11A(5) of the FOI Act. It noted that the documents relate predominantly to their internal affairs and their contents are not of a character that would otherwise attract a public interest. It submitted none of the factors favouring access to the documents set out in

s 11B(3) of the FOI Act are materially relevant to the request. 4. In my view disclosure would provide contextual information relevant to government decisions, which would enhance the scrutiny of government decision making and promote the objects of the FOI Act. However, given the context and content of the documents, which mainly relate to the IC review applicant's operations rather than the government decision making process, I give these factors limited weight. For the reasons outlined above at [14] - [21], I give greater weight to the factors against disclosure, in particular the impact on the IC review applicant's business affairs. 5. On balance, I consider that the public interest factors against disclosure, in particular the impact on the IC review applicant's business affairs, outweigh the factors favouring disclosure, which I have given limited weight.

1. For the above reasons, I consider that the relevant documents (see Annexure A) are conditionally exempt under s 47G(1)(a) and disclosure would be contrary to the public interest at this time.

General Manager, Freedom of Information Case Management

Delegate of the Australian Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

Conditionally exempt under s 47G and disclosure contrary to the public interest

Not in scope of IC review (reviewable decision affirmed)

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Summary of Minutes Evidencing Review of Academic Performance Data

Conditionally exempt under s 47G and disclosure contrary to the public interest

Summary of Minutes Evidencing Review of Academic Performance Data

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Not in scope of IC review (reviewable decision affirmed)

Conditionally exempt under s 47G and disclosure contrary to the public interest

Attachment A - Entertainment Business Management Assessment Report

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Not in scope of IC review (reviewable decision affirmed)

Conditionally exempt under s 47G and disclosure contrary to the public interest

Academic Board Meeting Minutes 06122019 Pending approval

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

C.5.1 MUSIC CAC Minutes 20052019_approved31012020_SIGNED

Conditionally exempt under s 47G and disclosure contrary to the public interest

C.5.1 MUSIC CAC Minutes 21032019_approved20052019_SIGNED

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

Conditionally exempt under s 47G and disclosure contrary to the public interest

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

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.

(1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:

(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or

(b) could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

Section 47G(2) - (3) of the FOI Act contain exceptions to the exemption in s 47G(1) of the FOI Act.

As stated in the FOI Guidelines, this conditional exemption does not apply in the following circumstances:

... if the document contains only business information about the FOI applicant (s 47G(3)). Where the business information concerns both the FOI applicant and another business, the provision may operate to conditionally exempt the FOI applicant's information, but only if the FOI applicant's business information cannot be separated from the information of the other business or undertaking.

... to trade secrets or other information to which s 47 applies (s 47G(2)). In other words, a decision maker should consider an exemption under s 47 for documents containing trade secrets or other information to which s 47 applies if the circumstances call for it. This is a limited exception to the normal rule that more than one exemption may apply to the same information (see s 32).[16]

The FOI Guidelines explain that the operation of s 47G of the FOI Act depends on the effect of disclosure, rather than the precise nature of the information itself.[17] Notwithstanding this, the information must have some relevance to a person in respect of their business or professional affairs or to the business, commercial and financial affairs of the organisation.[18]

The use of the term 'business or professional affairs' distinguishes an individual's personal or private affairs and an organisation's internal affairs. The term 'business affairs' has been interpreted to mean 'the totality of the money-making affairs of an organisation or undertaking as distinct from its private or internal affairs.[19]

In relation to the question of unreasonableness, the FOI Guidelines state:

The presence of 'unreasonably' in s 47G(1) implies a need to balance public and private interests. The public interest, or some aspect of it, will be one of the factors in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is unreasonable. A decision maker must balance the public and private interest factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a), but this does not amount to the public interest test in s 11A(5) which follows later in the decision process.[20]

The test of reasonableness applies not to the claim of harm but to the objective assessment of the expected adverse effect. For example, the disclosure of information that a business' activities pose a threat to public safety, damage the natural environment, or that a service provider has made false claims for government money, may have a substantial adverse effect on that business but may not be unreasonable in the circumstances to disclose. Similarly, it would not be unreasonable to disclose information about a business that revealed serious criminality. These considerations require weighing the public interest against a private interest - preserving the profitability of a business. However at this stage it bears only on the threshold question of whether disclosure would be unreasonable.[21]

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.[22]

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.[23]

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] As noted below at [7] - [8], the respondent made an internal review decision on 20 February 2023, varying its original decision. The applicant requested the respondent 'reconsider' its internal review decision on 9 March 2023 on the basis that its decision on access was inconsistent with respect to duplicate or similar versions of documents. In response, the respondent corrected some typographical errors in the document schedule which recorded incorrect decisions against some of the documents.

[2] These 'Key points' (at [2]) were amended on 24 March 2025 as the initial version included incorrect wording.

[3] FOI request made on 10 October 2022.

[4] In relation to row 2 of the request it granted full access to 452 documents, partial access to 35 documents and refused access to 20 documents. In relation to row 2A of the request, it granted full access to 425 documents, partial access to 3 documents and refused access to 48 documents.

[5] In relation to row 2 of the request, the respondent granted full access to 338 documents, partial access to 34 documents, and refused access to 22 documents. In relation to row 2A of the request, the respondent granted full access to 247 documents, partial access to 103 documents, and refused access to 126 documents.

[6] The applicant's reconsideration request sets out these inconsistencies, which the applicant added to in their IC review application form.

[7] Correspondence to the applicant of 6 June 2024.

[9] Sections 11A, and 47G as set out in Annexure A.

[10] 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).

[12] Which include policy documents, samples, meeting minutes and other documents related to the IC review applicant's business.

[13] This includes on 25 September 2024, 4 October 2024, and 30 January 2025. On 30 January 2025 the OAIC wrote to the FOI applicant advising it appears that the decision to grant access to the documents may be set aside and gave them an opportunity to provide submissions.