Freedom of Information - Whether all reasonable steps taken to locate documents - Whether disclosure would have an adverse effect on the proper and efficient conduct of the operations of an agency - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 24A, 11A and 47E(d)

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Australian Charities and Not-For-Profits Commission (the respondent) of 28 April 2021, as varied on 27 July 2022. I substitute my decision that:
   • the respondent has taken all reasonable steps to find documents falling within scope of the request, and that further documents cannot be found or do not exist
   • material relating to communications between the applicant and the respondent on pages 19-26 of the documents at issue is not conditionally exempt under s 47E(d)
   • the remaining material is conditionally exempt under s 47E(d) of the FOI Act and disclosure would be contrary to the public interest (including the name of the entity in material relating to communications between the applicant and the respondent)
2. Within 28 days of this decision:
   • the respondent 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, and
   • the respondent 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 primarily discusses the application of s 47E(d) to documents relating to the applicant's complaints to the respondent about a not-for-profit entity. It is primarily of interest to the parties in relation to the specific documents sought but may have broader implications for agencies that have secrecy provisions which are not captured by s 38 of the FOI Act.

1. The respondent regulates charities and not-for-profit entities in the exercise of its functions under the Australian Charities and Not-for-profits Commission Act 2012 (ACNC Act). Specifically, the respondent is responsible under the ACNC Act for registering entities as not-for-profit entities, monitoring registered entities' compliance with certain provisions, and assessing registered entities' ongoing entitlement to registration.
2. On 29 March 2021, the applicant applied to the respondent for access to all or any documents and correspondence related to their complaints about a registered not for profit entity.
3. On 28 April 2021, the respondent identified 52 documents and decided to grant access in part, applying the exemption under s 47E(d) to some material.
4. Subsequently, during the Information Commissioner review (IC review), on 27 July 2022, the respondent varied the original decision and decided to grant access in full to the 52 documents. However, the respondent also identified an additional 18 documents and decided to release 2 of these documents in full and exempt the remaining 16 under s 47E(d) of the FOI Act.
5. The issue to be decided in this IC review are:
   • whether the respondent has taken all reasonable steps to find documents within the scope of the request
   • whether the material that the respondent maintains is conditionally exempt under s 47E(d) 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)).
6. 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.[1]
7. In making my decision, I have had regard to the following:
   • the respondent's decision and reasons for decision of 28 April 2021 and its revised decision and reasons for decision of 27 July 2022
   • the documents at issue
   • the FOI Act[2]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[3] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[4] and
   • the parties' submissions.

1. Section 24A requires that an agency take 'all reasonable steps' to find a requested document and to be satisfied that it cannot be found or does not exist, before refusing the request.
2. After the receiving the respondent's revised decision, and reviewing the documents released to them, the applicant raised concerns about whether the respondent had included all relevant documents.[5]
3. In response to the applicant's concerns, the respondent submitted:
   • Its records indicate the original decision maker contacted the two directorates within the respondent that typically deal with the sort of matters falling within the scope of the FOI Request.
   • The original decision maker requested that the two directorates search their electronic records, including all relevant email mailboxes, and any other sources of information for documents and correspondence relating to the complaints.
   • The original decision maker provided the case numbers of the complaints but made clear to the two directorates that searches need not be limited to matters with these case numbers.
   • The original decision maker also noted undertaking their own searches of the respondent's primary electronic file management system.
   • The actions of the original decision maker to locate documents is consistent with the respondent's practice of keeping digital records of its matters in its electronic file management system and corresponding with stakeholders via email correspondence.
4. I have had regard to the submissions and other information provided by the respondent, including the evidence of searches undertaken. In my view, considering the steps taken to search for documents, and the respondent's reasonable explanation of these steps, I am satisfied that the respondent is unable to locate any additional documents despite taking all reasonable steps to search for documents within scope of the request.

1. For the above reasons, I am satisfied that the respondent has taken all reasonable steps to find documents falling within scope of the request, and that further documents cannot be found or do not exist.

1. A document will be conditionally exempt if:
   • its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (s 47E(d)), and
   • it would be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).
2. In its revised decision and submissions, the respondent said (in summary):
   • The documents contain protected ACNC information.
   • The term 'protected ACNC information' is defined at section 150-15 of the ACNC Act. It applies to information that was disclosed or obtained under or for the purposes of the Act; and relates to the affairs of an entity; and identifies, or is reasonably capable of being used to identify, the entity.
   • Subsection 150-25(2) of the ACNC Act prohibits the disclosure of protected ACNC information to anyone other than the entity to whom the information relates; an agent of that entity; or a responsible entity of that registered entity.[6] The applicant does not fall within any of these categories.
   • Even though s 38[7] of the FOI Act is not available to the respondent, it would be a perverse outcome if it was required to release, under FOI, documents that Parliament explicitly intended to remain confidential to the respondent and the entity to whom the information relates. The secrecy provisions contained in the ACNC Act are clear and well-known to the sector and disclosure in these circumstances would likely discourage other regulated entities from cooperating with the respondent's regulatory activities in the future.
3. In summary the applicant submitted the ACNC Act explicitly allows for the lawful disclosure of protected information under s 150 where the disclosure serves the purposes of the Act. These include promoting transparency and accountability of registered entities and maintaining, protecting, and enhancing public trust and confidence in the not-for-profit sector. The applicant submitted disclosure would serve these purposes.
4. In response the respondent indicated the ACNC Act does not allow for disclosure in the circumstances. The respondent submitted s 150-25 of the ACNC Act prohibits an ACNC Officer to disclose or use protected ACNC information unless an exception set out at Subdivision 150-C of the ACNC Act applies[8], and that none of those exceptions apply in this case.[9]
5. Previous IC review decisions[10] have accepted, based on the wording and intent of

s 150-25 of the ACNC Act, that the respondent relies on sensitive information being provided to it on a voluntary basis on the understanding that the information will not be disclosed to third parties. I consider these principles have direct application in this case. 6. I have had regard to the respondent's function of regulating not-for-profit entities and the likely effect of disclosing documents supplied to it. Similar to previous decisions, I accept that the basis for this secrecy provision is to establish a regulatory regime where the respondent can discharge its regulatory functions in an environment of trust and engagement with the not-for-profit sector. As the respondent noted, when entities and individuals engage with the respondent, they do so with the expectation that protected information will be kept confidential. 7. I have reviewed unredacted versions of the documents at issue and have considered the parties' submissions. It is apparent to me that the material at issue is protected information for the purposes of the ACNC Act. I consider that if the respondent is unable to uphold the expectation of confidentiality, and protected information of a similar nature is routinely released through FOI, there are considerable risks to both the providers of that information and to any third parties referenced in the information. There is a risk that entities and individuals may be less willing to cooperate with the respondent which would impede upon its ability to perform many of its regulatory and investigative functions and damage its ability to effectively take regulatory action against charities. 8. In these circumstances I am satisfied that disclosure of the documents would likely discourage other regulated entities from cooperating with the respondent's regulatory activities in the future, and that disclosure could reasonably be expected to have a substantial adverse effect on the respondent's operations in carrying out its regulatory functions that rely on its engagement with the not-for-profit sector. 9. However, based on my review of the documents at issue and the documents which the respondent has released to the applicant, I consider the respondent has inconsistently deleted material of a similar nature (material relating to communications between the applicant and the respondent) from the documents. In previous matters[11], I have found that agencies have not met their onus in similar circumstances. Noting the context and the definition of protected ACNC information'[12], I accept that the name of the entity in these parts of the documents is conditionally exempt under s 47E(d). 10. In my view, the respondent has not adequately explained the inconsistency. In these circumstances I consider disclosing material relating to these communications with the applicant, which are already in their knowledge and/or possession, could not reasonably be expected to have a substantial adverse effect on the respondent's operations, particularly if the name of the entity is deleted.

1. For the above reasons, I consider the respondent has not met its onus to demonstrate that the material relating to communications between the applicant and the respondent on pages 19-26 of the documents at issue are conditionally exempt under s 47E(d)
2. I consider the remaining material is conditionally exempt under s 47E(d) of the FOI Act (including the name of the entity in material relating to communications between the applicant and the respondent).

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

1. Having found certain material to be conditionally exempt under s 47E(d) 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.[13]
2. In summary the respondent submitted:
   • Disclosure would provide greater recognition that information held by government is a national resource managed for public purposes and that it would increase transparency regarding how the respondent responds to concerns raised against charities.
   • However, there is an equal or greater risk that disclosure could reasonably be expected to impede the flow of information to the respondent and prejudice its ability to obtain confidential, and similar information in the future. This would undermine its response to investigations, as well as the response of other Government agencies.
   • Disclosure could reasonably be expected to harm the interests of an individual.
3. In summary the applicant submitted:
   • Access would give the applicant access to their personal information.
   • The denial of access undermines their ability to ensure that due process has been followed and that appropriate measures have been taken to address concerns related to their children's welfare.
   • The concealment of information regarding complaints about organisations that have a duty of care towards children may create an environment of impunity, where concerns are neither scrutinised nor adequately addressed. Public trust in the respondent as a regulator is undermined when it withholds information that could demonstrate how it ensures accountability and compliance within the not-for-profit sector, particularly in relation to child safety.
   • Release of information from the respondent will assist in ensuring that policies and procedures at the entity are enforced, and that the proprietor is being held suitably accountable to the respondent as the regulator.
   • The documents may inform legal action against the entity.[14]
4. Based on my review of the material, and the submissions I consider disclosure would promote the objects of the FOI Act by revealing information about complaints made to the respondent and how the respondent deals with complaints. I give weight to this factor.
5. Based on my review of the documents at issue I do not consider disclosure of the particular information I have found to be conditionally exempt would provide the applicant with their personal information.
6. For the reasons outlined above at [14] - [23], I accept the respondent's submissions and give weight to the factors against disclosure raised by the respondent. In particular, taking into account the wording and intent of s 150-25 of the ACNC Act and the principles discussed above at [20], I give significant weight to the Department's submission that disclosure could reasonably be expected to impede the flow of information to the respondent and prejudice its ability to obtain confidential, and similar information in the future. This would undermine their response to investigations, as well as the response of other Government agencies.
7. On balance, I consider the factors against disclosure, which I have given significant weight, outweigh the factors favouring disclosure.

1. On balance, I consider that the public interest factors against disclosure, which I have given significant weight, outweigh the factors favouring disclosure.

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.

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

(1) An agency or Minister may refuse a request for access to a document if:

(a) all reasonable steps have been taken to find the document; and

(b) the agency or Minister is satisfied that the document:

(i) is in the agency's or Minister's possession but cannot be found; or

(ii) 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.[15]

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

Section 47E(d) 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 proper and efficient conduct of the operations of an agency.

As discussed in the FOI Guidelines[16] and in IC review decisions,[17] a document is conditionally exempt under s 47E(d) if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

With respect to the term 'substantial adverse effect', the FOI Guidelines also explain:

The term 'substantial adverse effect' broadly means 'an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person'. The word 'substantial', in the context of substantial loss or damage, has been interpreted as including 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.

A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons under s 26 to show their deliberations in determining the extent of the expected effect. It may sometimes be necessary to use general terms to avoid making the statement of reasons itself an 'exempt document' (s 26(2)).[18]

Further, in Re James and Others and Australian National University (1984) 6 ALD 687; [1984] AATA 501, Deputy President Hall explained:

As a matter of ordinary English, I think that the expression "the conduct of the operations of an agency" is capable of extending to the way in which an agency discharges or performs any of its functions. [19]

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.[20]

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.[21]

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.

[2] Section 11A and 47E(c) as set out in Annexure A.

[3] 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).

[5] Email from the applicant dated 10 August 2022. Applicant's submission of 6 February 2025.

[6] Under section 150-25 of the ACNC Act, unauthorised disclosure of protected ACNC information attracts a penalty of 'imprisonment for two years or 120 penalty units, or both for the person who discloses the information'.

[7] A document is exempt under s 38 of the FOI Act if its disclosure is prohibited under an enactment specified in Schedule 3 of the FOI Act or if s 38 is expressly applied to the document by an enactment.

[8] Subdivision 150-C list five possible exceptions to allow an ACNC Officer to use or disclose protected ACNC information. These exceptions are:

- disclosure in performance of duties under the ACNC Act

- disclosure on the Charity Register to achieve the objects of the ACNC Act,

- disclosure of information lawfully made available to the public.

(a) a disclosure of the documents in response to the FOI Request is not a disclosure in the performance of an ACNC Officer's duties under the ACNC Act,

(b) the 16 documents do not fall within the information permitted to be disclosed on the Charity Register, as set out under Division 40 of the ACNC Act,

(c) disclosure of the material to you under the FOI Act is not a disclosure to an Australian government agency,

(d) the ACNC does not have the consent of the entity subject of the documents to disclose the documents; and

(e) the information contained in these documents has not been lawfully made available to the public.

[10] Graham Mahony and Australian Charities and Not-for-profits Commission (Freedom of information) [2019] AICmr 64 (31 August 2019) at [22].

[11] See, for example, AFV and Services Australia (Freedom of information) [2023] AICmr 125 (14 December 2023).

[12] Which relevantly includes information that identifies, or is reasonably capable of being used to identify, the entity.

[14] The applicant also noted that a matter before the (former) Administrative Appeals Tribunal indicates that a finding was made about the entity which indicates there is greater public interest in disclosure.

[15] 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.

[16] See FOI Guidelines at [6.90] - [6.92], and [6.112] - [6.118] and the cases referenced there.

[17] See, Raymond Williams and Department of Defence (Freedom of information) [2023] AICmr 26; Refugee Advice & Casework Service and Department of Foreign Affairs and Trade (Freedom of information) [2023] AICmr 16; Christis Tombazos and Australian Research Council (Freedom of information) [2023] AICmr 14; 'ACF' and Australian Public Service Commission (Freedom of information) [2022] AICmr 73; Rex Patrick and Department of the Prime Minister and Cabinet (No. 2) (Freedom of information) [2022] AICmr 66; 'ZA' and Department of Veterans Affairs (Freedom of information) [2021] AICmr 83; Australian Society for Kangaroos and Rural Industries Research and Development Corporation trading as AgriFutures Australia (Freedom of information) [2019] AICmr 31; and 'PR' and Comcare (Freedom of information) [2019] AICmr 2.

[18] FOI Guidelines at [6.18] - [6.19] (footnotes omitted).

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

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