Freedom of Information - Whether reasonable steps taken to find documents - Whether disclosure of personal information unreasonable - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 11A, 24A and 47F

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Australian Maritime Safety Authority (AMSA) of 27 April 2021.
2. I substitute my decision that:
   • AMSA has taken all reasonable steps to locate documents relevant to the applicant's request and further relevant documents cannot be found or do not exist.
   • The material that AMSA and the third party no longer maintains is conditionally exempt under s 47G of the FOI Act is not conditionally exempt.
   • The names, signatures and contact details of employees that AMSA and the third party maintain are conditionally exempt under s 47F of the FOI Act, are conditionally exempt under that provision and release would be contrary to the public interest at this time.
   • The position titles of employees that the third party maintains are conditionally exempt under s 47F of the FOI Act, are conditionally exempt under that provision but release would not be contrary to the public interest at this time.
3. Within 28 days of this decision:
   • AMSA 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
   • AMSA 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 24A and 47F of the FOI Act to correspondence between AMSA and Rio Tinto in relation to the vessels Baru and Guya and is primarily of interest to the parties in relation to the specific documents sought.
2. It finds that AMSA has taken all reasonable steps to identify documents within the scope of the applicant's request and further documents cannot be found or do not exist under s 24A of the FOI Act.
3. The decision also finds that the personal information of AMSA and Rio Tinto employees (excluding position titles) is conditionally exempt under s 47F, in the circumstances of this case.

1. On 24 February 2021, the applicant applied to AMSA for access to:

(a) Correspondence created between 1 January 2019 and 31 December 2020 between AMSA and Rio Tinto in relation to the vessels Baru and Guya, and

(b) Internal AMSA correspondence created between 1 January 2019 and 31 December 2020 that sets out AMSA's findings following the investigation of issues in relation to the vessels Baru and Guya at Rio Tinto's Gove Operations.

1. AMSA identified 22 documents in response to the applicant's request and decided to grant part access to the documents, with conditionally exempt information deleted under ss 47F and 47G of the FOI Act and irrelevant information deleted under s 22 of the FOI Act. In making its decision, AMSA consulted with an affected third party (Rio Tinto).
2. During the course of this IC review, the Office of the Australian Information Commissioner (OAIC) requested AMSA provide updated submissions addressing the OAIC's preliminary view and the passage of time. In response, after conducting further consultation with Rio Tinto, AMSA withdrew its exemption contentions in relation to the release of Rio Tinto's business information under s 47G.[1] However, AMSA maintains that the names, signatures and contact details of AMSA employees are conditionally exempt under s 47F. Rio Tinto also maintains objections to the release of the names, position titles and contact details of Rio Tinto employees, on the basis of s 47F.
3. The applicant broadly takes issue with AMSA's decision.[2] In a number of submissions, the applicant notes there are ongoing safety concerns regarding the continued use of the vessels Baru and Guya.
4. The issues to be decided in this Information Commissioner review (IC review) are therefore, whether:
   • AMSA has taken all reasonable steps to identify documents within the scope of the applicant's request and that further documents cannot be found or do not exist under s 24A of the FOI Act, and
   • the material that AMSA and Rio Tinto maintain is conditionally exempt under s 47F of the FOI Act is conditionally exempt under that provision, 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:
   • AMSA's decision and reasons for decision of 27 April 2021
   • the documents at issue
   • 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 (FOI Guidelines),[6] and
   • the parties' submissions.

Whether reasonable steps taken to find documents (s 24A)

1. Section 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that a document cannot be found or does not exist.
2. AMSA submits that it took all reasonable steps to find documents relevant to the scope of the applicant's request. In support of this contention, AMSA provided the OAIC with details of the searches undertaken in relation to the request and the outcome of those searches. These indicate that the Operations, West business unit of AMSA undertook searches through its hardcopy and electronic documents and records management systems.
3. I have also considered the records of the searches undertaken by Operations, West, which the OAIC requested AMSA provide during the course of this IC review.[7] These identified the:
   • date searches were undertaken
   • person/s who undertook the searches
   • locations searched, including the internal records management system used by AMSA (HPRM)
   • search terms used
   • outcomes of the searches undertaken and what was considered by those who conducted them.
4. AMSA submits that it is confident all documents falling within the scope of the applicant's request were identified through the search and retrieval process. AMSA further submits:
   • AMSA's internal FOI Procedure was correctly followed, and
   • Operations, West produced all documents to the FOI team and conducted a 'final check' for documents, confirming all material had been provided to the FOI team.
5. Based on the evidence before me, and a detailed consideration of the scope of the applicant's request together with the context to their request, I am satisfied that AMSA has done all that could reasonably be required of it to find documents relevant to the applicant's request.

1. I find that AMSA has taken all reasonable steps to locate documents relevant to the applicant's access request. I am satisfied that further documents cannot be found or do not exist.

1. Both AMSA and Rio Tinto maintain that the names and contact details of AMSA and Rio Tinto employees are conditionally exempt under s 47F of the FOI Act. Additionally:
   • AMSA contends that the signatures of AMSA employees are conditionally exempt under s 47F.
   • Rio Tinto contends that the position titles of Rio Tinto employees are conditionally exempt under s 47F.
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.[8] That definition is set out in Annexure A.
2. AMSA and Rio Tinto submit that the documents contain the names, signatures and contact details of their employees. This is personal information, as it is information about individuals who are identified or are reasonably identifiable.
3. I find that the names, signatures and contact details of AMSA and Rio Tinto employees is 'personal information' for the purposes of s 47F(1) of the FOI Act.
4. I also find that the position titles of Rio Tinto employees that appear in the documents are 'personal information' under s 47F(1) of the FOI Act. The positions occupied by these employees are very senior within Rio Tinto's Gove Operations and the names of the employees occupying these positions are available online, making them reasonably identifiable.

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. AMSA submits that the disclosure of the personal information of its employees (names, signatures and contact details) would be unreasonable because:
   • the personal information is not well known or in the public domain
   • the employees involved are not known to be associated with the matters dealt with in the documents
   • all employees named in the documents at issue are below the Senior Executive Service (SES) Band 1 level
   • the employees have expressed opposition to the release of their personal information
   • the FOI Act does not control or restrict any subsequent use or disclosure of the information,
   • release of the personal information may impact upon the health and safety of AMSA employees.[9]
3. Rio Tinto also submits that the release of personal information of its employees (names and contact details) involved in the subject of the applicant's request, may impact on their health and safety.[10]
4. Having weighed the relevant factors[11] and the parties' submissions, I find that the names, signatures and contact details of AMSA employees and the names and contact details of Rio Tinto employees would involve an unreasonable disclosure of personal information in the context of the particular case before me.
5. However I do not agree that it would be unreasonable to release the position titles of Rio Tinto employees, given their seniority within the firm.

1. I am satisfied that the names, signatures and contact details of AMSA employees and the names and contact details of Rio Tinto employees are conditionally exempt under s 47F of the FOI Act.
2. The position titles of Rio Tinto employees are not conditionally exempt under s 47F of the FOI Act.

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

1. Having found some material in the documents to be conditionally exempt under s 47F of the FOI Act, I am required to consider whether it would be contrary to the public interest to give the applicant access to conditionally exempt material at this time.
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.[12]
3. In summary, AMSA acknowledges that there is a public interest in information being made available to the public for the purpose of encouraging public debate and to promote oversight of AMSA's activities. However, having regard to the nature of the documents at issue, AMSA submits:
   • The release of the personal information of AMSA employees would not meaningfully promote the objects of the FOI Act.
   • Scrutiny of AMSA's work in this area would not be further enhanced by release of the personal information of the AMSA employees involved. The approach taken by AMSA as reflected in the documents has not been the decision of a single AMSA employee, but an approach agreed within AMSA.
   • In contrast to the limited public interest in disclosing the documents, there is a significant public interest in preserving measures which are put in place by AMSA to manage the work, health and safety of its employees.
4. As above, Rio Tinto refers to the impact of release on the health and safety on their employees.
5. Determining whether the disclosure of conditionally exempt material is contrary to the public interest requires balancing the public interest (and value) in the information being disclosed and any identifiable harm that could reasonably be expected to follow from the disclosure.
6. Above I have found that disclosure of employee names, signatures and contact details would be unreasonable in the circumstances. In my view this factor weighs against disclosure.
7. 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 [26]-[30]). I attribute significant weight to these factors against disclosure.
   1. On balance, I consider the factors against disclosure of the names, signatures and contact details of AMSA employees and the names and contact details of Rio Tinto employees outweigh the factor favouring disclosure, which I have given minimal weight.

1. For the above reasons, I consider the names, signatures and contact details of AMSA and Rio Tinto employees are conditionally exempt under s 47F and it would be contrary to the public interest to release them.

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.

Whether reasonable steps taken to find documents (s 24A)

Section 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that it cannot be found or does not exist.

The Act is silent on what constitutes 'all reasonable steps'. The meaning of 'reasonable' in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.

Agencies and ministers should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's operating environment or the minister's office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:

• the subject matter of the documents
• the current and past file management systems and the practice of destruction or removal of documents, and
• the record management systems in place
• the individuals within an agency or minister's office who may be able to assist with the location of documents, and
• the age of the documents.[13]

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.[14]

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,[15] 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'.[16]

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.[17]

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.[18]

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.[19]

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.[20]

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] In submissions dated 25 March 2025, AMSA advised it had consulted further with Rio Tinto and they no longer maintain objections to the release of business information under s 47G.

[2] The applicant has made numerous submissions in this matter which, taken together, indicate the applicant is dissatisfied with AMSA's decision as a whole.

[4] Sections 11A, 24A and 47F as 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).

[7] See AMSA's submissions dated 22 January 2025.

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

[9] In submissions of 4 August 2021, AMASA notes that the applicant has a significant history of regularly contacting AMSA employees to express views on matters relating to the vessels Baru and Guya and other issues. The applicant has also demonstrated threatening behaviour. To manage the impact of the applicant's behaviour on employees, AMSA has provided one personal point of contact and has advised the applicant to send emails to this officer and the AMSA FOI inbox.

[10] Rio Tinto also submits the applicant has displayed ongoing threatening behaviour towards Rio Tinto employees.

[11] 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'.

[13] FOI Guidelines at [3.88] - [3.89]. For further information, see FOI Guidelines at [3.85] - [3.94]; 'RD' and Comcare (Freedom of information) [2019] AICmr 61; 'PK' and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 65; 'PI' and Department of Human Services (Freedom of information) [2018] AICmr 62; 'PF' and Department of Human Services (Freedom of information) [2018] AICmr 59; 'OP' and Department of Home Affairs (Freedom of information) [2018] AICmr 43; Josh Taylor and Prime Minister of Australia (Freedom of information) [2018] AICmr 42.

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

[15] 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.

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

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

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