1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the deemed decision of The Australian National University (ANU) of 27 July 2021.

1. This decision discusses the application of s 47F to documents relating to ANU staff, students and third-parties. It finds that in the particular circumstances of this matter, disclosure of their personal information would be unreasonable and contrary to the public interest. The decision is primarily of interest to the parties.

1. On 26 April 2021, the applicant applied for access to documents about staff misconduct and bullying/harassment of ANU staff for the timeframe 1 January 2019 until the date of their request. The full request is set out at Annexure A.
2. The ANU identified 48 documents within the scope of the request and decided that all the documents were fully exempt under s 47F and some material was also exempt under either ss 42 or 45.[1]
3. On 28 July 2021 the applicant sought Information Commissioner review (IC review) of ANU's deemed access refusal decision.
4. During this IC review the ANU submitted that some further parts of the documents at issue were also exempt under s 45, and additionally some material in the documents at issue was exempt under ss 47C, 47E and 47G.
5. Having reviewed the documents and their context, I consider they are most appropriately considered under s 47F. Therefore the issue I have considered in this IC review is whether the documents at issue are conditionally exempt under s 47F, 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.[2]
7. In making my decision, I have had regard to the following:
   • the Department's purported decision[3] and reasons for decision of 27 July 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,[6] and
   • the parties' submissions.

1. This provision applies where the 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. The Department submitted that the documents at issue contain:
   • the personal information of former and current university staff
   • the personal information of students
   • the personal information of third-parties
   • in some cases, the sensitive information of staff and students, and
   • in some case, health information of staff and students.
2. 'Personal information' under the FOI Act has the same meaning as in the Privacy Act 1988 (Cth). That definition is set out in Annexure B.
3. I find that information about ANU staff and students, and third-parties, is 'personal information' for the purposes of s 47F(1) as it is information about individuals who are identifiable or are reasonably identifiable.

Would disclosure involve an unreasonable disclosure of personal information?

1. In its decision the Department advised the applicant that the information considered exempt contains the sensitive personal information of a number of third-parties.
2. ANU submitted that:
   • the information is not available from publicly accessible sources
   • disclosure of this personal information could potentially have a negative impact on the relevant individuals, and
   • disclosure of this personal information would be an unreasonable disclosure of personal information about those individuals.
3. The applicant has not provided substantive submissions during this IC review. In their application for IC review they submitted that they disagreed with the exemptions applied and would expect the documents to at least be released in part with the exempt information redacted.
4. I have examined the unedited documents, and have considered the submissions against the mandatory factors in s 47F(2) and other relevant factors.
5. I acknowledge that disclosure of the documents may promote the public interest in government transparency and integrity. However, based on the content and context of the documents I do not consider disclosure of the personal information contained within them would meaningfully promote transparency around actions and decisions made by the ANU.
6. In my view, having regard to the documents at issue, the following factors weigh against their disclosure:
   • the information is not well known or publicly available
   • the individuals in question are not known to be associated with the subject matter of the documents
   • while there is no evidence before me regarding whether the individuals concerned would consent to their personal information being released, given the content and context of the documents I consider it is highly likely the individuals concerned would object to the release of their personal information and that release would cause stress to these individuals.
7. Having weighed the relevant factors, I consider that, on balance, disclosure of the documents would involve an unreasonable disclosure of personal information because the factors against disclosure outweigh those in favour of disclosure.

1. I am satisfied that the personal information contained within the documents 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 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.[7]
3. While ANU did acknowledge that disclosure would promote the objects of the FOI Act and provide transparency of the University's internal investigative functions, it submitted that the following factors weighed against disclosure:
   • disclosure of personal information could reasonably be expected to prejudice the protection of individuals' right to privacy, given that disclosure of information under the FOI Act is a disclosure to the world at large and not just to the applicant
   • it is firmly in the public interest that the University uphold the rights of individuals to their own privacy and meets its obligations under the Privacy Act 1988 (Cth). When finalising the decision it was determined that this factor weighs heavily against disclosure of the personal information contained within the documents
   • disclosure of the documents could reasonably be expected to prejudice the fair treatment of individuals where the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct
   • if these kinds of documents are disclosed publicly and published on the University's disclosure log, the University expects this would prejudice the University's ability to obtain confidential and similar information in the future - ultimately, impacting the University's ability to take appropriate action against any misconduct.
4. As referred to above, the applicant did not provide any substantive submissions to this IC review. They did, however, submit that ANU's public interest test was incorrectly applied in that arguments favouring disclosure outweigh arguments favouring non-disclosure.
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 found that disclosure of the personal information of the individuals in question would be unreasonable in the circumstances. In my view this factor weighs against disclosure.
7. While release of the conditionally exempt information 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 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 [18] - [20]).
8. On balance I consider the factors against disclosure outweigh the factors favouring disclosure, which I have given minimal weight.

1. For the above reasons, I consider the documents at issue are conditionally exempt under s 47F, and it would be contrary to the public interest to release them.

Documents, specifically reports, executive/board meeting minutes, statistics, internal correspondence such as emails along with related AV material such as CCTV, mobile phone/video footage/photos, since 1 January, 2019, until the date of this application on the following:

1. Staff misconduct.

2. Bullying/harassment of ANU staff.

If an investigation has been finalised, please limit to the final report and if an executive summary/briefing of the final report exists, please limit to that, along with any related AV material. If it hasn't, please limit to just the initial complaint.

Please exclude documents on those which were unsubstantiated. However, if they were substantiated, an investigation was ongoing, or if there was not enough evidence or information to proceed, I expect documents on those to still be captured.

Please exclude duplicates, documents that have already been publicly released, media reports/releases/articles and correspondence with media.

Searches are limited to the Office of the Vice Chancellor and ANU Security (per email of 27 April)

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.

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.[8]

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,[9] 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'.[10]

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.[11]

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.[12]

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.[13]

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.[14]

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 ANU also claimed some material in documents 17 and 24 was irrelevant under s 22. It did not identify which material it was referring to in these documents. Given ANU claimed all documents at issue were fully exempt under s 47F, as referred to at paragraph [7] in this decision, I will consider the material in documents 17 and 24 under this exemption claim.

[3] Following an agreed extension of time by the parties for a decision to be made by 25 June 2021, the OAIC granted a further extension of time until 26 July 2021. ANU made its decision on 27 July 2021.

[4] Sections 11A, and 47F set out in Annexure B.

[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).

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

[9] 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.

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

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

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