1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the decision of the Prime Minister of Australia (the Prime Minister) of 24 April 2024.

1. This decision finds that documents related to the Prime Minister's attendance at a Taylor Swift concert are not "official documents of a Minister" and are therefore outside the scope of the FOI Act. Based on evidence provided on behalf of the Prime Minister that no department or agency was involved in arranging or planning his attendance or providing briefing I am satisfied that the documents do not "relate to the affairs of an agency" which is a requirement for a document to be "an official document of a Minister".

1. On 25 March 2024, the applicant applied to the Prime Minister for access to all documents related to the Prime Minister's attendance at a Taylor Swift concert in Sydney on 23 February 2024. The full request is set out at Annexure A.
2. On 24 April 2024, the Prime Minister's office refused the applicant's request on the basis that it was satisfied that the applicant was not seeking access to 'an official document of a Minister' as defined under s 4 and that the request accordingly falls outside the scope of the FOI Act.
3. On 7 May 2024 the applicant sought Information Commissioner review (IC review) of the decision submitting that they had not been provided with a schedule of documents by the Prime Minister's office and that they considered the documents they requested were official documents of a Minister.
4. The issues to be decided in this IC review are whether the requested documents are "official documents of a Minister" for the purposes of the FOI Act and if so whether the Prime Minister has taken all reasonable steps to identify documents within the scope of the request and that documents cannot be found or do not exist.
5. As this is an IC review of an access refusal decision, the Prime Minister bears the onus of establishing that his decision is justified, or that I should give a decision adverse to the applicant.[1]
6. In making my decision, I have had regard to the following:
   • the Prime Minister's office's decision and reasons for decision of 24 April 2024
   • 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.

Whether documents are "official documents of a Minister"

1. The Prime Minister submits, in summary:
   • The requested documents are not "official documents of a Minister" because they do not "relate to the affairs of an agency".
   • In Joel Fitzgibbon and Prime Minister of Australia [2016] AICmr 85 (Fitzgibbon), it was confirmed that "not all documents held in the Prime Minister's office will be considered as 'official documents of a Minister', and therefore subject to the FOI Act".
   • Documents related to the Prime Minister's attendance at a Taylor Swift concert bear no connection with the Prime Minister's portfolio responsibilities, nor with the business, activities or policy responsibilities of the Department of Prime Minister and Cabinet or any other agencies.
   • The Department of the Prime Minister and Cabinet had no involvement in facilitating the Prime Minister's attendance at the concert. No staff from the Department of the Prime Minister and Cabinet attended the concert with the Prime Minister.
   • The documents requested do not relate to the affairs of the Department of the Prime Minister and Cabinet - or any other Commonwealth agency. Neither the Department of the Prime Minister and Cabinet nor any other Department had any involvement in the Prime Minister's attendance at the concert. Neither the Department of the Prime Minister and Cabinet nor any other Department received or processed the invitation, was involved in planning the Prime Minister's attendance or provided any briefings to the Prime Minister about his attendance.
2. The applicant submits access to documents about the Prime Minister's attendance at the Taylor Swift concert is in the public interest, and relates to his duties as a minister, for the following reasons
   • The gift of tickets was disclosed on his official parliamentary register of interests. The Prime Minister was one of only a small number of senior MPs to disclose gifts of Taylor Swift tickets, which indicates only senior or well-known MPs were gifted tickets, and indicating the Prime Minister's status was a factor in his receipt of tickets.
   • According to the Prime Minister's media website (www.pm.gov.au/media), Mr Albanese mentioned Taylor Swift at least 19 times in public appearances shortly before or after the concert - mostly in relation to his attendance at the concert. The Prime Minister highlighted his appearance at the concert, or did not refuse opportunities to speak about it - which has elevated the issue to become part of his role because he may have only received the tickets due to his status as holding that office. In media appearances in his capacity as Prime Minister, he regularly spoke about his fondness for Swift's music and praised the economic benefits that the concert tour brought to Australia.
   • If staff inside the Prime Minister's office have been involved in any correspondence or scheduling work around the PM's appearance at the concert, this is in the public interest to know. If staff inside his office have been tasked to work on that visit to the concert, that means the issue has been elevated to the work of, and documents, a minister or department - by sheer fact that staff of that minister, office or department have been tasked to work on those documents.

1. Section 11 of the FOI Act provides a right of access to "an official document of a Minister other than an exempt document". Section 4 of the FOI Act defines the term "official document of a Minister" to be:

..a document that is in the possession of a Minister...in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency.

2. A document will therefore only be an "official document of a Minister" if it is a document that relates to the affairs of an agency or of a Department of State. As the FOI Guidelines point out,[5] this is not restricted only to matters within the minister's own portfolio responsibility but could relate to an agency within the portfolio responsibility of any minister.
3. Although I accept the applicant's suggestion that the Prime Minister effectively attended the concert in his capacity as Prime Minister, it does not automatically follow that documents relating to his attendance at the event are "official documents of a Minister". As the FOI Guidelines explain,[6] there are several types of documents held by ministers that are not related to the affairs of an agency including personal documents and party-political documents.
4. I do not accept the applicant's submission that just because staff in the Prime Minister's office have been tasked to support attendance at the event, the issue is elevated to being related to the affairs of an agency. Staff in ministers' offices perform many functions some of which are not related to the affairs of agencies, such as party-political functions.
5. In the present case, the Prime Minister has explained that neither the Department of the Prime Minister and Cabinet nor any other Department had any involvement in the Prime Minister's attendance at the concert nor were they involved in planning the Prime Minister's attendance or provide any briefings about his attendance. Based on this evidence I am satisfied that the documents requested by the applicant do not relate to the affairs of an agency and are therefore outside the scope of the FOI Act.

1. The documents requested by the applicant are not "official documents of a minister" for the purposes of s 11 of the FOI Act.

All documents related to the prime minister Anthony Albanese's attendance at a Taylor Swift concert in Sydney on February 23 2024 (as disclosed on his register of member's interests on 21/3/24, provided by Universal Music Group)

I seek documents including, but not limited to:

- invitations to the concert and correspondence with Universal Music Group regarding the prime minister's attendance or his seating plans

- internal correspondence or documents relating to the prime minister's travel to Sydney and the concert venue Accor Stadium

- any list of names, provided by the PMO, for tickets or for entry to the venue for the prime minister and his team

Please limit searches for these documents to the period January 1 2024 to March 22 2024. Please exclude media clippings and publicly available documents. I would agree for personal details (phone numbers, signatures, names of staff below executive level) to be redacted.

(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.

2.60 An 'official document of a minister' means a document in a minister's possession in their capacity as a minister, being a document that relates to the affairs of an agency (s 4(1)).

2.61 The time for assessing whether a document is an 'official document of a minister' is the time when the request for access is made, and only at that time.

2.62 The first element of this definition is that a document is 'in the possession of a minister ... in his or her capacity as a Minister'. This includes a document in the possession of a minister's office and is not confined to a document that is personally held by the minister. For example, under a similar provision in Victoria it was held that an electronic diary maintained by the Premier's Chief of Staff in providing support functions to the Premier was a document in the Minister's possession.

2.63 'Possession' of a document can also include constructive as well as actual possession: see [2.50]. Section 4(1) further provides that a document is in a minister's possession if the minister is entitled to access a document that has passed from their possession, other than a document that is a document of an agency. Irrespective of the minister's entitlement to access a document, if the relevant document is in an agency's possession, that document is a 'document of an agency'. A document cannot be both a document of a minister and a document of an agency.

2.64 Documents which a minister holds solely in their capacity as a Senator or member of Parliament, that is documents not related to ministerial responsibilities and functions (for example, documents relating to electorate matters), are not an official document of a minister and do not fall within the scope of the Act.

2.65 The second element of the definition is that a document in the minister's possession 'relates to the affairs of an agency'. Documents relating to the minister exercising his or her ministerial responsibilities and functions, and ministerial staff supporting a minister to perform ministerial functions, is a document that relates to the affairs of an agency (in this case, the agency being the minister). This phrase is to be understood broadly and encompasses any matter that falls within the scope of ministerial responsibilities or the portfolio responsibilities of a minister. This includes any matter that could be the subject of a Government action or decision; any matter relating to the functions and powers conferred on the minister under legislation; and any matter on which legislation may be introduced into the Parliament; and matters relating to business or activities of an agency. The phrase is not restricted only to matters within the minister's own portfolio responsibility but could relate to an agency within the portfolio responsibility of any minister. The content of a document and the context in which it was created or held by the minister will also be relevant.

2.66 Documents held by a minister that have been found to relate to the affairs of an agency include:

• entries in the Prime Minister's appointments diary relating to meetings with other political leaders to discuss the legislative program

• a letter to the Prime Minister from a former Prime Minister conveying views on issues of national policy

• a reference written by a minister on official letterhead and

• a work diary of a ministerial adviser (in a Victorian decision).

2.67 Documents held by a minister that do not 'relate to the affairs of an agency' include:

• personal documents of a minister that are not related to their capacity as a minister

• personal documents of a member of the minister's staff that are not related to a ministerial function

• documents of a party political nature

• documents held in the minister's capacity as a local member of parliament not dealing with the minister's portfolio responsibilities.

2.68 Examples of documents that do not relate to the affairs of an agency include entries in the Prime Minister's appointments diary relating to party-political events, and a letter to the Prime Minister from an organisation established to provide support to the political party headed by the Prime Minister.

2.69 The provisions of the FOI Act relating to amendment and annotation of personal records also apply to the official documents of ministers (s 48). That is, a person may apply to a minister to amend or annotate an official document that is claimed to contain incomplete or incorrect personal information about the person making the application (see Part 7 of these Guidelines).

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.

[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).

[7] At [2.60] - [2.69] [footnotes omitted].