1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed decision of the Department of Home Affairs (the Department).[1] I substitute my decision that:
   • The name and signature of a departmental staff member in the document is conditionally exempt under s 47E(c), and disclosure would be contrary to the public interest.
   • The material which the Department no longer maintains is exempt under s 33 is not exempt.
2. Within 28 days of this decision:
   • the Department must provide the applicant with a copy of the document, edited under s 22 of the FOI Act only to the extent necessary to delete material I have found to be exempt, 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.
3. This decision is given on the same day as the following IC review decision which involves the same parties and deals with the similar issues: 'AUT' and Department of Home Affairs (Freedom of information) [2025] AICmr 56 (31 March 2025) (the related matter).

1. This decision discusses the application of s 47E(c) to the name and signature of a staff member in a document relating to an assessment of the applicant's second request for Ministerial Intervention under s 351 of the Migration Act 1958 (Cth) (Migration Act). It gives weight to the applicant's submission that disclosure would advance the public interest in government transparency and accountability, but finds that on balance, disclosure would be contrary to the public interest.

1. On 16 April 2021, the applicant applied to the Department for access to an assessment of the applicant's second request for Ministerial Intervention under s 351 of the Migration Act.
2. In its purported decision, the Department found the name and signature of a staff member to be conditionally exempt under s 47E(c) and a small amount of material to be exempt under s 33. It provided access to the remainder of the document.
3. During the Information Commissioner review (IC review), the Department advised it no longer maintains material in the document is exempt under s 33. Accordingly, I consider this material is not exempt under that provision and should be provided to the applicant.
4. Therefore the issue to be decided in this IC review is whether the name and signature are conditionally exempt under s 47E(c) 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.[2]
6. In making my decision, I have had regard to the following:
   • the Department's purported decision and reasons for decision of 2 July 2021
   • the document at issue
   • the FOI Act[3]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[5] and
   • the parties' submissions.

1. Subsection 47E(c) of the FOI Act provides that a document is exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.
2. In summary[6], the Department submitted:
   • The staff member named in the document is a non-SES officer. While the Department does publish the names of its SES officers (and accordingly takes additional steps to provide for the safety of such officers), it does not publish the names of non-SES staff, in order to protect staff against the risk of inappropriate unsolicited approaches, personal attack and harassment.
   • The staff member is part of the Ministerial Intervention section. It takes additional steps to limit the dissemination of officers' names due to the nature of the work undertaken by the section, and the fact that Ministerial Intervention cases can attract media attention and can be of a sensitive nature.
   • The Department considers that their employment in the Ministerial Intervention section presents additional risk that the staff member will be subject to targeting and harassment should their names be disclosed, due to their roles in making decisions that frequently result in adverse migration outcomes for individuals.
   • The Department consulted the Ministerial Intervention section and that section advised that the officer (who continues to work for the Department) objected to the disclosure of their name.
   • Disclosure of the names of officers contained within the documents could impact on the ability of the Department to comply with its health and safety obligations under the Work Health and Safety Act 2011 (WHS Act), and have other impacts. This would, or could reasonably be expected to, have a substantial adverse effect on the management of personnel by the Department.
3. In summary the applicant submitted the Department's submissions do not justify withholding the identities of individuals, groups, or departments involved in their case. While the applicant recognises the Department's emphasis on staff protection, this reasoning is inconsistent with the operational nature of the Department, which is fundamentally different from agencies like ASIO, where high levels of secrecy are necessary due to national security concerns. In contrast, the Department handles administrative decisions that directly affect applicants' lives based on set criteria, where transparency should be expected.
4. Based on my review of the documents and the Department's submissions, it is apparent the document was created for the purpose of assessing the applicant's request for Ministerial Intervention under s 351 of the Migration Act.
5. Section 351(1) states 'If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.' Section 351(3) notes that the power may only be exercised by the Minister personally, and s 351(7) states that the Minister does not have a duty to consider whether to exercise the power in any circumstances
6. The Department's website[7] notes that the Minister's guidelines describe the types of cases that might be referred for the Minister's consideration. It assesses all requests against these guidelines and finalises requests that do not meet the guidelines. Most requests do not meet the guidelines and are not referred to the Minister.[8]
7. I have considered the parties' submissions about the impact of disclosure of the name and signature. It is apparent that the name and signature are not well known or publicly available and the individual is not known to be associated with the matters dealt with in the document. Relevantly, as outlined above at [12], the Department advised the Ministerial Intervention section takes several steps to limit the dissemination of staff names due to the nature of their work. I have reviewed correspondence between the applicant and the ministerial Intervention section. It does not include the names of staff members, which is consistent with the Department's submissions.
8. Previous IC review decisions have found names and identifying information about non-SES staff conditionally exempt under this provision in certain circumstances where the staff member's role involves dealing with contentious or emotional subject matter and issues.[9] It is apparent from the nature of the request and the context that the Ministerial Intervention section deals with contentious or emotional subject matter or issues. As the Department noted, assessments conducted by staff members in that team will determine whether or not individuals will be eligible to be granted a visa (should the Minister intervene to grant a visa). Only a small number of requests for Ministerial Intervention are referred to the Minister by the Department, meaning that the officers in question are frequently involved in making decisions that result in adverse outcomes for individuals, including decisions that result in individuals no longer having a legal right to remain in Australia.
9. As noted in the related matter, the team advised the staff member objected to the disclosure. Their objection raised the risk that they will be subject to targeting and harassment should their names be disclosed given the nature of their work. I consider their objection is reasonable in the circumstances.
10. Above I accepted that disclosure of the name and signature (over the staff member's objection) would create a risk for them given the contentious nature of their work, in circumstances where they are not known to be associated with the matters dealt with in the documents. I accept that the staff member would, or could, reasonably have concerns for their safety if their name is disclosed in these circumstances, and that those concerns may undermine their health and safety. I also recognise that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act and accept that that is relevant in considering whether their name and signature is conditionally exempt.
11. I accept that disclosure in these circumstances could impact on the ability of the Department to comply with its health and safety obligations under the WHS Act, and impact on the capacity of the Department to recruit and retain staff in these roles. I am satisfied that this would, or could reasonably be expected to, have a substantial adverse effect on the management of personnel by the Department in these circumstances.

1. I am satisfied that the documents are conditionally exempt under s 47E(c) of the FOI Act.

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

1. Having found the documents to be conditionally exempt under s 47E(c) 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.
2. 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.[10]
3. In summary the applicant submitted that disclosure of the names will promote the public interest in transparency and accountability. The applicant said[11]:
   • They seek access complete records related to their case, as transparency is critical, given the repercussions of these decisions on their professional and personal life and that these decisions are final and not subject to merits review.
   • The applicant's concerns were dismissed without proper justification. The refusal to disclose the names of those involved in these decisions raises serious concerns about the integrity of the assessment process.
   • The response fails to address how the Department ensures decisions are made responsibly and in line with the Department's values. Without transparency regarding those involved, it is unclear how the Department prevents bias, prejudice, or influence from external factors in their decisions. Concealing identities in decision-making only fosters a lack of accountability in a context where transparency is crucial.
4. While the Department acknowledged a general public interest in access to government held information, it submitted disclosure may cause harm to the staff member and would not inform debate on a matter of public importance or promote effective oversight of public expenditure.
5. In addition, the Department submitted:
   • disclosure of the name would provide no additional insight into the operations of the Department or assist the general public in its understanding of the matters
   • there is a public interest in protecting staff from unsolicited direct contact from members of the public and reducing the risk of harassment or inappropriate approaches by individuals and groups and maintaining its duty of care to officers under the WHS Act.
6. The APS Values and Code of Conduct set the expectation that public servants are accountable for their decisions. Noting this, I accept disclosure of the staff member's name and signature would advance the public interest in government transparency and accountability in the circumstances given their involvement in a decision that affected the applicant. I give weight to this factor.
7. However, in attributing weight to this factor, I have also considered that the Department has released the remainder of the document to the applicant in its entirety, including the staff member's position title and the content of the assessment. In these circumstances, release of the name and signature would not provide the applicant with any additional information about the reasons for the assessment or the Department's decision not to refer the applicant's request to the Minister.
8. Based on my review of the documents and for the reasons outlined above at [14] - [22], I consider disclosure of the documents would harm the interests of the staff members in question, and would, or could reasonably be expected to, have a substantial adverse effect on the management of personnel by the Department in these circumstances. I accept the Department's submission that there is a public interest in protecting Departmental staff from harassment or inappropriate approaches by individuals and groups in the circumstances, consistent with its duty of care to staff under the WHS Act. On balance, I give greater weight to these factors.
9. Though the factors are finely balanced, on balance, I consider the factors against disclosure, which I have given greater weight, outweigh the factor favouring disclosure in the circumstances.

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.

Certain operations of agencies exemption (s 47E(c))

Section 47E(c) of the FOI Act states a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.

the predicted effect needs to be reasonably expected to occur... There must be more than merely an assumption or allegation that damage may occur if the document is released.

...

An agency cannot merely assert that an effect will occur following disclosure. The particulars of the predicted effect should be identified during the decision-making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied on, the relevant particulars and reasons should form part of the decision maker's statement of reasons, if they can be included without disclosing exempt matter (s 26, see Part 3).[12]

For this conditional exemption to apply, the document must relate to either:

• the management of personnel - including broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and work health and safety

• the assessment of personnel - including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.[13]

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.[14]

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.[15]

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 request was made on 16 April 2021, and the Department made its purported decision on 2 July 2021, outside of the statutory timeframe. Accordingly, upon expiry of the statutory timeframe, the Department was deemed to have made an access refusal decision.

[3] Sections 11A, and 47E(c) set out in Annexure A.

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

[6] A more fulsome summary of the Department's submissions is set out in the related matter.

[7] Ministerial intervention.

[8] The exercise of the power under s 351 of the Migration Act, and the Department's role in that process has been considered in recent court decisions including Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs High Court of Australia, 12 April 2023 [2023] HCA 10.

[9] Paul Farrell and Department of Home Affairs (Freedom of information) [2023] AICmr 37; 'AIQ' and Department of Home Affairs (Freedom of information) [2024] AICmr 61.

[11] In addition to their submissions outlined above at [13].

[13] FOI Guidelines at [6.103] (footnote omitted).

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

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