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

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the decision of Australia Post of 2 September 2021.

1. This decision discusses the application of s 47F of the FOI Act to a request for access to a mail redirection notice lodged with Australia Post by a third party. It finds disclosure of the document would be unreasonable and contrary to the public interest.

1. On 20 August 2021, the applicant applied to Australia Post for access to a copy of a redirection notice lodged by another person to redirect mail addressed to a deceased person.
2. On 2 September 2021, Australia Post decided to refuse access to the document under s 47F of the FOI Act on the basis that disclosure of the personal information in the document would be unreasonable, and disclosure would be contrary to the public interest. The applicant sought IC review of the decision.
3. 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]
4. The issue to be decided in this IC review is whether the document is 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)).
5. In making my decision, I have had regard to the following:
   • Australia Post's decision and reasons for decision of 2 September 2021
   • the document 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. A document or material will be exempt under this conditional exemption if it 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 document contains personal information

1. 'Personal information' under the FOI Act has the same meaning as the equivalent term in the Privacy Act 1988 (the Privacy Act).[5] That definition is set out in Annexure A and requires that the information be about 'an identified individual or an individual who is reasonably identifiable'. It includes the personal information of a deceased person.
2. Given the scope of the request (which names specific third parties) and the material at issue includes names and associated information which identifies individuals, I am satisfied that the material is 'personal information' for the purposes of s 47F(1) of the FOI Act.

Whether disclosure would involve an unreasonable disclosure of personal information

1. In summary Australia Post submitted:
   • The information is not well known or publicly available, and although the applicant assumes they know certain information, the individuals are not otherwise known to be associated with the matters dealt with in the documents.
   • A third party objected to the disclosure of their personal information.
   • A third party would expect their personal information would remain confidential consistent with s 90G of the Australian Postal Corporation Act 1989 (Cth) (APC Act) which prohibits the disclosure of information relating to services supplied or personal particulars, other than in certain circumstances.
   • Disclosure would not advance the public interest in government decision making, transparency or integrity given the subject matter of the document.
2. In summary the applicant submitted:
   • If there are two executors, as in this case, both must agree before their mail can be redirected (as per the relevant legislation).
   • Australia Post should not have accepted the mail redirection notice, and they acknowledged their mistake.
   • In these circumstances[6], where the applicant is aware of the mail redirection notice and the identity of the individuals involved, disclosure would not be unreasonable.
3. I have examined an unedited and unredacted copy of the documents, as well as the submissions, and the mandatory and other factors in s 47F(2) of the FOI Act.
4. Having considered the content of the document, I consider that disclosure would provide transparency in relation to an application made to Australia Post. In these circumstances, I consider disclosure would advance the public interest in government transparency, albeit to a limited extent, given that it provides minimal information about actions taken by Australia Post.
5. However, in my view, having regard to the content and context of the documents at issue, the following factors weigh against disclosure of the documents in this case:
   • The material in the document is not well known or publicly available and while certain information may be known to the applicant, the individuals are not known more broadly to be associated with the subject matter of the document.
   • The third party has objected to disclosure and noting the broad prohibition on disclosure in s 90G of the APC Act, would not reasonably expect their personal information to be disclosed under the FOI Act in the circumstances.
6. 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. Taking into account the scope of the request and the content of the document, I consider this applies to the entirety of the document, as disclosing it with deletions would still reveal information about the third parties named in the request.

1. I am satisfied that the document 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 document 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. 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.[7]
2. In summary, Australia Post submitted:
   • The personal information was collected for the purpose of administering Australia Post's mail redirection service. Australia Post's mail redirection services applies to re-direct delivery in relation to services which operate in competition with other services. Disclosure may impact the willingness of people to disclose their information and take up the service.
   • The prohibition under s 90 of the APC Act supports Australia Post's position that disclosure of the personal information would not be in the public interest.
   • Disclosure is not related to matters of common concern or relevance to all members of the public.
3. The applicant's submissions are summarised above at [[[8]](2025_79.html#_Ref19691498 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.[9]

A person who is reasonably identifiable

6.126What constitutes personal information will vary depending on whether an individual can be identified or is reasonably identifiable in the particular circumstances. For particular information to be personal information, an individual must be identified or reasonably identifiable.

6.127Where it may be possible to identify an individual using available resources, the practicability, including the time and cost involved, will be relevant to deciding whether an individual is 'reasonably identifiable'.[114] An agency or minister should not, however, seek information from the FOI applicant about what other information they have or could obtain.

6.128Where it may be technically possible to identify an individual from information, but doing so is so impractical that there is almost no likelihood of it occurring, the information is not personal information.[115] In Jonathan Laird and Department of Defence [2014] AICmr 144, the Privacy Commissioner was not satisfied that DNA analysis of human remains could reasonably identify a World War II HMAS Sydney II crew member. In finding that the DNA sequencing information held by the Department was not personal information, the Privacy Commissioner discussed that identifying the remains using DNA sequencing would be 'impractical for a reasonable member of the public'.[116]

6.129Similarly, in a series of IC review decisions,[117] the Information Commissioner had to decide whether or not aggregate information relating to the nationality, language and religion of refugees resettled under Australia's offshore processing arrangements was the personal information of the relevant individuals. In each case, the Information Commissioner found that the individuals were not reasonably identifiable from the aggregated information.

6.130Therefore, whether or not an individual is reasonably identifiable depends on the practicability of linking pieces of information to identify them.

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,[10] 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)).

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.[11]

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.[12]

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 47F as set out in Annexure A.

[3] See, Office of the Australian Information Commissioner (OAIC), Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

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

[6] The applicant claims Australia Post should not have accepted the redirection notice and has no standing regarding privacy concerns.

[8] The applicant questioned the relevance of some of Australia Post's submissions on the public interest.

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

[10] 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 [6.229] - [6.233].

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