Freedom of Information - Whether material contains commercially valuable information - Whether disclosure would unreasonably affect an organisation in respect of its lawful business affairs - Whether disclosure of personal information unreasonable - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 11A, 47(1)(b), 47G(1)(a) and 47F

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the internal review decision of Comcare of 1 March 2021 as varied by the revised decision on 25 September 2024.
2. I substitute my decision that:
   • the material that the third party maintains is exempt under s 47(1)(b) of the FOI Act is not exempt under that provision
   • Documents 5 and 7 that Comcare maintain are conditionally exempt under s 47G(1)(a) of the FOI Act are conditionally exempt under that provision, but release would not be contrary to the public interest at this time
   • the remainder of the material that Comcare maintains is conditionally exempt under s 47G(1)(a) of the FOI Act is not conditionally exempt under that provision, and
   • the material that Comcare maintains is conditionally exempt under s 47F of the FOI Act[1] is conditionally exempt under that provision and release would be contrary to the public interest at this time.
3. Within 28 days of this decision:
   • Comcare must provide the applicant with a copy of the documents, edited under s 22 of the FOI Act only to the extent necessary to delete material I have found to be exempt or irrelevant, and
   • Comcare 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 discusses the application of ss 47(1)(b), 47G(1)(a) and 47F of the FOI Act to documents in relation to Comcare's management of Services Australia's workers compensation claims. It is primarily of interest to the parties in relation to the specific documents sought.

1. On 6 November 2020, the applicant applied to Comcare for the following documents:
   1. The Allianz Claims Management policies used to manage Comcare's Services Australia's workers compensation claims.
   2. Allianz's Claims Management Instructions.
   3. Allianz's Contract Management Manual and other contract plans.
2. On 15 January 2021, Comcare advised it had located nine documents in response to items 1 and 3 of the applicant's request.[2] Comcare decided to refuse access to parts of two documents (Document 1 and 3) and seven documents in full (Documents 2 and 4-9), on the basis these documents comprised personal information (s 47F) and business information of a third party (s 47G). On 1 March 2021, Comcare affirmed its original decision on internal review and additionally found that s 47E(c) (certain operations of agencies) also applied to the material at issue under s 47F.
3. On 25 September 2024, Comcare made a revised decision under s 55G of the FOI Act, granting further access to Documents 1-4 and 8 and maintaining its decision to refuse access to Documents 5-7 and 9 in full on the basis of ss 47G and 47F. Comcare no longer maintains its exemption contentions in relation to s 47E(c).
4. Comcare consulted with Allianz Australia Limited (Allianz) during the processing of the applicant's request. Allianz maintains its objections to the release of the remaining material at issue under the revised decision, on the basis of s 47(1)(b) (commercially valuable information) and s 47F (personal information).[3]
5. The applicant generally contests the redaction of information from the documents, saying that Comcare is a statutory authority covered by the Public Governance, Performance and Accountability Act 2013 and this extends to those performing contracted work on behalf of Comcare such as Allianz. If an agency is using public funds to conduct its business, then it is accountable to show and explain those uses.[4]
6. The issues to be decided in this Information Commissioner review (IC review) are therefore, whether:
   • the material that Allianz maintains is exempt under s 47(1)(b) of the FOI Act is exempt under that provision
   • the material that Comcare maintains is conditionally exempt under ss 47G and 47F of the FOI Act is conditionally exempt under those provisions, 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)).
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.[5]
8. In making my decision, I have had regard to the following:
   • Comcare's internal review decision and reasons for decision of 1 March 2021
   • Comcare's revised decision and reasons for decision of 25 September 2024
   • the documents at issue
   • the FOI Act[6]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[7] to which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines),[8] and
   • the parties' submissions.

Documents disclosing trade secrets or commercially valuable information (s 47)

1. Allianz maintains that the documents comprise exempt material under s 47(1) of the FOI Act.
   1. The documents comprise Allianz's internal Contract Management Manual and associated claims management procedures and compliance procedures.
   2. Section 47(1) of the FOI Act provides that a document is an exempt document if its disclosure under this Act would disclose:
      • trade secrets (s 47(1)(a)), or
      • 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 (s 47(1)(b)).
   3. Allianz's submissions centre on the commercial value of the material at issue. I have therefore taken Allianz's submissions to be limited to the application of s 47(1)(b) to the material at issue.

1. I have set out the requirements of s 47(1)(b) in Annexure A. The FOI Guidelines state:

To be exempt under s 47(1)(b) a document must satisfy two criteria:

• the document must contain information that has a commercial value either to an agency or to another person or body, and
• the commercial value of the information would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.[9]

1. Allianz submits the documents form part of the Contract Management Manual (Document 5) between Allianz and Comcare and set out the detailed system that Allianz has put in place to manage service standards and performance under the Claims Management Services Agreement with Comcare, including Allianz's claims management model, personnel allocation, precedent templates, triage modelling and customer engagement process. Allianz says:
   • This is sensitive commercial information pertaining to Allianz's terms of engagement. The documents form part of the service offering which Allianz made to Comcare to secure its selection as claims management agent and service provider.
   • Disclosure would diminish the competitive commercial value of the information to Allianz and prejudice Allianz's legitimate business, commercial, professional or financial interests.
   • If Allianz's competitors gain access to this information, it would enable them to pre-empt strategic decisions and identify areas of most commercial benefit to compete, such that they would gain an unfair competitive advantage over Allianz in future tendering processes in which they are competing with Allianz for the provision of similar services.
2. In relation to specific documents, Allianz says:
   • Document 5 comprises Allianz's Contract Management Manual. It outlines Allianz's model and procedures for the delivery of the services to be provided under the Claims Management Service Agreement. It also sets out Allianz's quality assurance framework and procedures to identify and rectify failures in the quality of service and Allianz's approach to management of data and records. It includes Allianz's management calendar and timeline setting out key priorities, milestones, meetings, deliverables and reporting.
   • Document 7 contains Allianz's Data Security Controls which protect the information obtained, used, transferred and stored whilst carrying out the required services under the Claims Management Service Agreement. The document identifies and provides specific detail of Allianz's security programs and the specific mechanisms, policies and personnel employed by Allianz (including details of security backup) for the purpose of data protection and security. Disclosure could potentially impact and cause significant damage to Allianz's wider general business should third party competitors gain access. Disclosure would also compromise the security of personal information and other information legally stored by Allianz subject to the provisions of Australian privacy laws.

1. In determining whether the material is exempt under s 47(1)(b), I have relied on authorities that considered the technical nature of the documents at issue, its commercial value, and whether the commercial value would be diminished if the documents were released.[10]
2. I consider the analysis of the s 47(1)(b) exemption in 'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47 ('VO') is relevant to this IC review.[11] I particularly note the discussion of the findings of former Australian Information Commissioner McMillan in McKinnon and Department of Immigration and Citizenship [2012] AICmr 34 (McKinnon),[12] that s 47(1)(b) did not apply to documents relating to the running of Regional Processing Centres. While the third party had stated the information related to its 'internal business affairs', this by itself was not enough to establish that information has commercial value for the purposes of s 47. A further issue considered in McKinnon was the age of the information. The documents were between 20 and 30 months old and related to a commercial negotiation that may have concluded. The Information Commissioner was not able to be satisfied that the information still retained commercial value and that disclosure at that time would diminish that value.[13]
3. I have also considered the non-exhaustive list of factors that may assist in determining whether information has commercial value, referred to in Annexure A. Based on my examination of an unredacted copy of the documents and the parties' submissions, I find that the material at issue is analogous to the material in McKinnon, in that it comprises the 'internal business affairs' of Allianz. While I recognise the material appears to hold some commercial value to Allianz, it seems unlikely a genuine 'arm's-length' buyer would be prepared to pay to obtain this information given the documents are between five and seven years old.
4. I am not satisfied that the information still retains its commercial value and that disclosure would reduce the profitability or viability of Allianz's business operations or commercial activities, if it were to be released at this time.

1. For the above reasons, I am not satisfied that the documents contain exempt material under s 47(1)(b) of the FOI Act.

1. Comcare maintains that parts of Documents 1-4 and 8 and Documents 5-7 and 9 in full are conditionally exempt under s 47G(1)(a).
2. 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 not be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).

Whether the information at issue is business information

1. The FOI Guidelines explain that the business information exemption is intended to protect the interests of third-parties dealing with the Government.[14] The operation of s 47G depends on the effect of disclosure rather than the precise nature of the information itself. Notwithstanding this, the information must have some relevance to a person in respect of their business or professional affairs or the business, commercial and financial affairs of the organisation.[15]
2. 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.[16] Accordingly, in this IC review, for the s 47G conditional exemption to apply, the documents must concern Allianz's money-making affairs.
3. Comcare submits that the documents contain information about Allianz's business framework and processes regarding their service and performance standards, including Allianz's Contract Management Manual (Document 5).
4. I examined an unedited copy of the documents and I am satisfied that the relevant material comprises Allianz's business information, specifically its service delivery model with Comcare.

Whether disclosure would have an unreasonable adverse effect on Allianz's business affairs (s 47G(1)(a))

1. When considering whether disclosure of a document would have an unreasonable adverse effect on a person's business or professional affairs, the FOI Guidelines relevantly explain:

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 of s 11A(5) which follows later in the decision process [footnotes omitted].[17]

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 be reasonable in the circumstances to disclose. Similarly, it would not be unreasonable to disclose information about a business that revealed serious criminality. These considerations require a weighing of a public interest against a private interest, preserving the profitability of a business, but at this stage it bears only on the threshold question of whether the disclosure would be unreasonable [footnotes omitted].[18]

3. Comcare submits that the disclosure of Allianz's business information would be unreasonable as it is comprehensive of the specific approaches and measures Allianz has developed in delivering its services to Comcare. The information could reasonably be expected to enable competitors to gain an unfair advantage over Allianz in future tendering processes when competing for the provision of similar services. Competitors could also use Allianz's business information in the documents to update their own processes or service documents. The information is also confidential and is not otherwise publicly available.
4. Although Allianz does not specifically rely on s 47G, instead relying on contentions in relation to s 47(1)(b) as above, Allianz generally submits that the documents contain a large amount of commercially sensitive information and the release of this information could compromise its ability to operate competitively in the market.
5. I have reviewed an unedited copy of the documents. The redacted material comprises:
   • Allianz's Contract Management Manual, which describes the Claims Management Services Agreement with Comcare for the delivery of claims management services and how they will be managed (Document 5).
   • Allianz's procedures and policies with respect to the performance of the services it delivers to Comcare. Including, for example, the Claims Management Model and information in relation to the segmentation of claims to claims officers, recruitment, competencies of senior and support staff, Allianz's Comcare induction for staff members, fraud control and risk management (Documents 1-4 and 6-9).
6. Based on my review of the material, I am not satisfied that disclosure of the majority of this material could allow Allianz's competitors to replicate its service delivery model since it is not sufficiently detailed or complex. Also, the information is now between five and seven years old. Given the nature of the material and the passage of time, I am not satisfied that disclosure of this material would have an unreasonable adverse effect on Allianz's business affairs.
7. However, I find that Allianz's Contract Management Manual (Document 5) is specific to the agreement between Allianz and Comcare for the delivery of claims management services. I am satisfied the disclosure of this material may have an unreasonable adverse effect on Allianz's business affairs, as release would reveal the specific terms of Allianz's engagement to its competitors.
8. I also accept Allianz's submissions that the Data Security Controls (Document 7) provides details of Allianz's security programs and mechanisms, policies and personnel employed by Allianz for the purpose of data protection and security. I am satisfied the disclosure of this material could have an unreasonable adverse effect on Allianz's business affairs, as release could compromise the security of information stored by Allianz.

1. I am satisfied that the material at issue in Documents 5 and 7 is conditionally exempt under s 47G(1)(a) of the FOI Act. However, I am not satisfied that Documents 1-4 or 5-9 contain conditionally exempt material under s 47G(1)(a) of the FOI Act.
2. As I have found that Documents 5 and 7 contain conditionally exempt material, I must consider whether its disclosure would be contrary to the public interest (s 11A). See below at [57]-[61].

1. Comcare has claimed the s 47F exemption throughout the documents at issue and characterised the relevant material as being personal information (names and contact information) of Comcare and Allianz employees.
2. I have set out the main requirements of this conditional exemption in Annexure A. Broadly, they are that a document 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)).

Whether the documents contain personal information

1. 'Personal information' under the FOI Act has the same meaning as the equivalent term in the Privacy Act 1988.[19] That definition is set out in Annexure A.
2. Comcare submits that the documents contain the full names and contact details of Comcare and Allianz employees. This is personal information, as it is information about individuals who are identified or are reasonably identifiable.
3. I find that the names and contact details of Comcare and Allianz employees 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. I have examined an unedited and unredacted copy of the material at issue, as well as the parties' submissions. I have considered the mandatory factors in s 47F(2) of the FOI Act as well as the other relevant factors below.
2. Comcare submits that the disclosure of the personal information of its employees and Allianz employees would be unreasonable because:
   • the personal information is not well known or in the public domain
   • the FOI Act does not control or restrict any subsequent use or disclosure of the information, and
   • release of their personal information may impact on the employee's health and safety.[20]
3. The applicant submits that full names of employees should be publicly available so that employees may be held accountable for their actions and enable complaints to be made about them.
4. Having weighed the relevant factors[21] and the parties submissions, I find that disclosure of names and contact details of Comcare and Allianz employees would involve an unreasonable disclosure of personal information.

1. I am satisfied that the material at issue is conditionally exempt under s 47F of the FOI Act.

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

1. Having found parts of the documents to be conditionally exempt under ss 47G(1)(a) and 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.[22] In considering the public interest, I have had regard to the parties' submissions.
2. In relation to the s 47G(1)(a) material (within Documents 5 and 7), Comcare submits disclosure of Allianz's confidential business information could reasonably be expected to:
   • inhibit the conduct of future negotiations about the procurement of professional services between Comcare and third parties in the future
   • diminish the competitive commercial value of the documents, prejudicing Allianz's legitimate business, commercial, professional or financial interests, and
   • provide Allianz's potential competitors with an unfair advantage in future tendering processes for the provision of similar services by allowing competitors to pre-empt strategic decisions and identify areas of most commercial benefits in which to compete. Competitors could also use Allianz's business information in the documents to update their own processes and service documents.[23]
3. In response, the applicant submits:
   • Comcare should promote the open discussion of public affairs and enhance government accountability. The treatment of injured workers under the federal workers compensation scheme is a significant issue affecting the public.
   • Release of the information would enhance government accountability in relation to Federal government contracts. The public have a right to be informed about the operations of an agency and those it has contracted to perform work on its behalf. The information would inform the public about how Comcare has ensured that the contracted provider is adhering to all relevant legislation.
4. In relation to the s 47F material, Comcare submits:
   • There is a significant public interest in protecting the employees of Comcare and Allianz from unreasonable interferences to their privacy and allowing them to undertake their duties safely and efficiently.
   • Disclosure of the personal information in this context would not further promote the objects of the FOI Act generally or inform debate or effective oversight of public importance.
5. Allianz submits:
   • The personal information contained in the documents is not of serious concern or benefit to any part of the public nor does its disclosure have any effect on informing debate on a matter of public importance, inform the public of government operations or decision or have any relevance to promoting effect oversight of public expenditure.
   • The potential detriment and damage incurred by breaching the privacy of individuals is contrary to the public interest.
6. As above, the applicant submits that the personal information of Comcare and Allianz employees should be made available to enable them to be held accountable for their actions.

1. In relation to the public interest factors in favour of disclosure of the material at issue in Documents 5 and 7, I am satisfied that there is a general public interest in the release of government held information and this weighs in favour of disclosing the conditionally exempt material. I also accept that disclosure would promote the objects of the FOI Act, by informing the community of the Government's operations in relation to Comcare's management of Services Australia's workers compensation claims. I also agree with the applicant, that the treatment of injured workers under the federal workers compensation scheme is a significant issue affecting the public. I attribute these factors favouring disclosure moderate weight.
2. However, having found the disclosure of the business information to be unreasonable (see above at [31]-[38]), I agree with Comcare and Allianz that disclosure may prejudice the commercial competitive activities of Allianz. I attribute this factor some weight. However, on the information before me, I cannot be satisfied of the extent of that prejudice given the age of the material at issue.[24] Further, for similar reasons, I do not accept that the disclosure of the material at issue could reasonably be expected to inhibit Comcare's future negotiations with third parties about the procurement of professional services.
3. As noted in the FOI Guidelines, access must be provided unless the degree of harm in disclosure is such that it outweighs the public interest in disclosure that underpin the FOI Act and that apply in this case.[25] The test is not whether disclosure would be positively in the public interest. Rather it is whether, on balance, disclosure would be contrary to the public interest, that is, that some harm or damage to the public interest which outweighs the benefit to the public in disclosure would ensue.[26]
4. On balance, I consider that the public interest in disclosure outweighs the private interests of Allianz and I therefore do not consider that the impact of the disclosure of Documents 5 and 7 would be contrary to the public interest in the circumstances, considering the age of the material at issue.
5. On the information before me, I consider that Comcare has not met its onus under s 55D and its reasons are insufficient to justify why the disclosure of the business information in Documents 5 and 7 would be contrary to the public interest at this time.

1. While release of the personal information throughout the documents at issue would promote the objects of the FOI Act generally, in my view, taking into account the nature and context of the particular material and the parties' submissions, this public interest consideration does not carry much weight in these circumstances in relation to the 47F material (for the reasons outlined above at [46]-[49]). I attribute significant weight to these factors against disclosure.
   1. On balance, I consider the factors against disclosure of the personal information (names and contact information of Comcare and Allianz employees) outweigh the factor favouring disclosure, which I have given minimal weight.

1. For the above reasons, I consider the release of the conditionally exempt material under s 47G(1)(a) in Documents 5 and 7 would not be contrary to the public interest.
2. However, I consider that the release of conditionally exempt material under s 47F throughout the documents at issue, would be contrary to the public interest.

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.

(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.[27]

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.[28]

(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).[29]

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.[30] 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.[31]

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.[32]

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.[33]

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.[34]

This limb of the conditional exemption comprises 2 parts:

• a reasonable expectation of a reduction in the quantity or quality of business affairs information to the government
• the reduction will prejudice the operations of the agency.[35]

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.[36]

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,[37] 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'.[38]

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.[39]

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.[40]

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.[41]

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.[42]

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] The names and contact details of Comcare and Allianz employees that appear throughout the documents at issue.

[2] On 24 November 2020, Comcare advised that the document relevant to item 2 of the request was released to the applicant administratively, as it was available on Comcare's Disclosure Log.

[3] On 17 March 2025, Allianz confirmed it did not wish to pursue a separate IC review in relation to the further information to which access was granted in the revised decision.

[4] Refer applicant's submissions dated 27 August 2024 and the applicant's request for IC review dated 2 March 2021.

[6] Section 11A, s47(1)(b), s 47G(1)(a) and s 47F as set out in Annexure A.

[7] 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).

[9] FOI Guidelines [5.204] - [5.205]. See McKinnon ands Department of Immigration and Citizenship [2012] AICmr 34.

[10] See the analysis in 'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47 at [100]- [106] which considers other authorities.

[12] 'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47 at [100]- [101].

[13] The Freedom of Information Commissioner recently considered the analysis in 'VO' in 'AGZ' and Department of Foreign Affairs and Trade (Freedom of information) [2024] AICmr 18 (6 February 2024) at [110].

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

[20] In the revised decision of 25 September 2024, Comcare notes that the applicant has demonstrated harassing behaviour towards Comcare and Allianz employees in the past by using names they had obtained in the course of the applicant's claim and using that information to search for further information about the individuals. Comcare also provided confidential submissions to the Office of the Australian Information Commissioner dated 3 July 2024 which centred on the applicant's past behaviour towards Comcare and Allianz employees.

[21] As discussed in 'FG' and National Archives of Australia [2015] AICmr 26, some of the factors relevant to whether disclosure of personal information would be unreasonable ' ... may be competing, so that a balancing process is required to decide if disclosure would be unreasonable'.

[23] Noting this submission is derived from Allianz's consultation response, in relation to the application of s 47(1)(b) of the FOI Act to the material at issue.

[24] The Contract Management Manual (Document 5) notes that the Claims Management Services Agreement with Comcare ended on 10 September 2021.

[26] See also Jonathan Sequeira and Australian Broadcasting Corporation (No. 3) (Freedom of information) [2023] AICmr 30 (28 April 2023) at [90].

[29] FOI Guidelines at [6.179] - [6.180].

[32] FOI Guidelines at [6.191] (footnotes omitted).

[33] FOI Guidelines at [6.184] (footnotes omitted).

[34] FOI Guidelines at [6.185] (footnotes omitted).

[35] FOI Guidelines at [6.197] footnoting Re Angel and the Department of the Arts, Heritage and the Environment; HC Sleigh Resources Ltd and Tasmania [1985] AATA 314.

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

[37] 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.

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

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

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