1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed decision of the Australian Federal Police (the AFP). I substitute my decision that:

• the material which the AFP maintains is irrelevant is irrelevant except for 'administrative information such as radio call signs'.
  • the material referred to below at [26] is not conditionally exempt under s 47E(d)
  • the remaining material which the AFP maintains is conditionally exempt under s 47E(d) is conditionally exempt under that provision and disclosure would be contrary to the public interest
  • the material which the AFP maintains is conditionally exempt under s 47F is not conditionally exempt under that provision

1. Within 28 days of this decision: * the AFP 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 * the AFP 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 a request by a person for access to certain documents related to them held by the AFP. It is primarily of interest to the parties but may also be relevant to similar circumstances involving requests for personal information to law enforcement agencies.

1. The applicant applied to the AFP on 11 December 2020 for access to certain information held by the AFP. On 8 February 2021 they made a revised request for (in summary) all Police Real-time On-line Management Information System (PROMIS) Case Summaries relating to their name (or their prior legal name), their residence or their former residence on or about 19 April 1996.
2. The AFP maintains material in the documents is conditionally exempt under ss 47E(d) (operations of an agency exemption), 47E(c) (management of personnel exemption) and 47F (personal information exemption). The AFP also maintains certain material is irrelevant to the request (s 22).
3. The applicant excluded certain details pertaining to non-SES staff[1] of the AFP and third parties from their request[2]. However, the applicant confirmed during the IC review that they dispute the AFP's deletions under s 22. Accordingly, I have considered this issue.
4. Initially, the applicant also sought IC review of whether the AFP took all reasonable steps to search for material within scope of the request. However, after the AFP identified further documents relevant to the request, the applicant confirmed searches is no longer at issue in the IC review. Accordingly, I have not considered the reasonableness of the AFP's searches.
5. The issues to be decided in this Information Commissioner review (IC review) are:
   • whether certain material is irrelevant to the request
   • whether the material that the AFP maintains is conditionally exempt under ss 47E(d) and 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)).
6. Below I find that all staff names and contact details in the documents (including those the AFP deleted under s 47E(c)) are irrelevant to the request. Given this, it is unnecessary for me to consider the application of s 47E(c).
7. 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]
8. In making my decision, I have had regard to the following:
   • the AFP's purported decision and reasons for decision of 30 March 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. The FOI Guidelines note that a request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used. [7]
2. The AFP advised it deleted the following material as irrelevant:
   • the names and identifiers of AFP staff members
   • administrative information such as radio call signs contained within the documents
   • in relation to victims and complainants (not the applicant), their name, contact details, particulars, statements to police and details of their interaction with police contained within the documents.
     1. While the applicant confirmed they want me to consider whether the AFP's deletions are appropriate they did not make specific submissions on this issue.
3. As noted above the applicant agreed to exclude certain details about AFP non-SES staff and third parties from their request. During the IC review, the applicant also confirmed that they do not seek access to third party personal information.
4. I have reviewed unedited copies of the documents at issue. I accept that the AFP's submission above accurately reflects the material which it has deleted from the documents under s 22.
5. Given that the applicant appears to have agreed to the exclusion of certain details about AFP staff and third parties from the scope of the request, I accept that material is irrelevant.
6. In addition, the AFP has inconsistently applied s 47E(c) to some AFP staff details, which have otherwise been deleted under s 22. For completeness, I consider all staff details in the documents (including those the AFP deleted under s 47E(c)) are irrelevant to the request.
7. There is no evidence before me to indicate that the applicant excluded information which the AFP described as 'administrative information such as radio call signs'. The AFP's submissions did not outline why they consider this material to be irrelevant. I consider the AFP has not discharged its onus to demonstrate that this material is irrelevant.

1. For the above reasons the AFP has not discharged its onus to demonstrate that 'administrative information such as radio call signs' is irrelevant.
2. Having considered the scope of the request and guidance, I consider the remaining material deleted by the AFP under s 22 is irrelevant.

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. The AFP submitted (in summary) that it performs statutory functions relating to the prevention and investigation of offences. The material at issue provides details relevant to these functions.
3. The AFP advised the material it deleted under this provision includes:
   • details of enquiries and searches undertaken by the AFP when preparing to respond to events to ensure officer and community safety
   • details of enquiries undertaken by police in relation to an investigation
   • details relevant to the way the AFP stores and catalogues information within its internal systems, particularly metadata and internal references.
   • details of how that investigation linked to other investigations (not related to the applicant)
4. I have examined an unedited copy of the documents. I accept that the documents at issue contain information regarding law enforcement methods and that the AFP's deletions under this provision are discrete and targeted. The AFP advised that many of the references used by the AFP in the course of pursuing its functions, are covert, and therefore reliant, on non-disclosure for effectiveness. I accept the AFP's submission that if potential persons of interest were to become aware of the methods used to investigate their conduct, particularly the extent to which the AFP links matters or investigations together, they could alter their behaviour in such a way as to avoid detection or prosecution. I accept that this would have a substantial adverse impact on the operations of the AFP and other law enforcement agencies.
5. While I accept the AFP's submissions in relation to most of the material, a small portion of the material is general in nature and contains methods which would be no surprise to anyone.[8] Based on the information before me, I am not satisfied that the disclosure of this material would have a substantial adverse effect on the AFP's ability to undertake its law enforcement activities.

1. I am satisfied that the material in the documents is conditionally exempt under s 47E(d) of the FOI Act, except for the material referred to above at paragraph [26].

1. The requirements of this conditional exemption are that a document contains 'personal information'; disclosure in response to the applicant's 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)).

1. 'Personal information' under the FOI Act has the same meaning as in the Privacy Act 1988.[9] It is clear on the face of the documents, and from the subject matter of the FOI request, that the remaining material at issue includes personal information of the individual who is the subject of the documents.
2. I find that this material is 'personal information' for the purposes of s 47F(1).

Would disclosure of that 'personal information' be unreasonable?

1. I have examined an unedited copy of the documents, as well as the parties' submissions. I have considered the mandatory factors in s 47F(2) as well as the other relevant factors below.
2. In summary, the applicant maintains that disclosure would not be unreasonable because the documents are about the applicant.
3. The AFP submitted it does not have evidence of the applicant's change of name and requested the OAIC facilitate obtaining the evidence from the applicant. The applicant provided the OAIC with evidence of their change of name, however declined to share the evidence with the AFP.
4. The applicant provided a certificate of change of name registration to the OAIC as evidence of their name change. Based on the evidence provided by the applicant, and noting that the applicant referred to the name in their FOI request as their 'prior legal name', I am satisfied that they have demonstrated that they are the individual who is the subject of the documents. I do not consider it would be unreasonable in the circumstances to provide the applicant with information about themselves.
5. Having weighed these relevant factors, I consider that disclosure of the applicant's personal information to them would not involve an unreasonable disclosure of personal information.

1. I find that the material at issue is not conditionally exempt under s 47F.

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

1. Having found material in the documents 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.[10]
2. In summary the AFP acknowledged the general public interest in access to government information and the public interest in people being able to scrutinise the AFP's operations. The AFP submitted these factors are outweighed by the substantial adverse effect that disclosure would have on its operations.
3. It is apparent from the applicant's submissions that they consider accountability and transparency should be given greater weight in this case.
4. Based on my review of the material, I accept disclosure would promote the objects of the FOI Act by revealing information related to AFP operations and investigations. However, for the reasons outlined above at [24] - [25], I accept the AFP's submissions and give weight to the factors against disclosure raised by the AFP. In particular I give weight to the AFP's submission that disclosure could reasonably be expected to have a substantial adverse effect on their law enforcement operations. In my view there is a significant public interest in the AFP being able to effectively undertake their law enforcement operations.

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

Section 22 of the FOI Act authorises an agency to prepare and to give an applicant access to an edited copy of a document if:

• an agency or Minister decides:
  • to refuse to give access to an exempt document (s 22(1)(a)(i)), or
  • that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access, and
• it is possible for the agency or Minister to prepare an edited copy of the document (s 22(1)(b)), and
• it is reasonably practicable to prepare an edited copy, having regard to the nature and extent of the modification required, and the resources available to modify the document (s 22(1)(c)), and
• it is not apparent, from an applicant's request or consultation with the applicant, that the applicant would decline access to the edited copy (s 22(1)(d)).

A request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used.[11]

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[12] and in IC review decisions,[13] 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)).[14]

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. [15]

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.[16]

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,[17] 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'.[18]

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.[19]

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.[20]

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.[21]

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.[22]

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 particular the applicant ticked yes in the AFP FOI form agreeing to exclude names of AFP members, other than the Senior Executive; and direct telephone numbers, signatures and mobile telephone numbers of AFP members.

[2] Specifically, names, addresses and identifiers.

[4] Section 11A and 47E(c) 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] FOI Guidelines at [3.54] footnoting Re Gould and Department of Health [1985] AATA 63.

[8] The first deleted sentence in Folio 33.

[11] FOI Guidelines at [3.54] footnoting Re Gould and Department of Health [1985] AATA 63.

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

[13] 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.

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

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

[17] 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.

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

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

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