Freedom of Information - Whether disclosure would prejudice lawful methods or procedures - Whether disclosure of personal information unreasonable - Whether contrary to public interest to release conditionally exempt information - (CTH) Freedom of Information Act 1982 ss 11A, 37(2)(b) and 47F

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the decision of the Department of Foreign Affairs and Trade (the Department) of 25 May 2021.

1. This decision discusses the application of ss 37(2)(b) and 47F of the FOI Act to information relating to the investigation of a possible contravention of the Education and Training Reform Act 2006 (Vic). It is primarily of interest to the parties to the IC review.

1. On 9 March 2021, the applicant made an FOI request to the Department, which they revised on 16 March 2021. The request as revised sought access to all correspondence between the Victorian Institute of Teaching (VIT) and the Department between April 2015 and June 2015 regarding two specified individuals.
2. The Department identified four documents falling within the scope of the request. In accordance with ss 26A and 27A of the FOI Act, the Department undertook consultation with the VIT in relation to the request. On 25 May 2021, the Department granted access to one of the documents and refused access to the remaining 3 documents, on the basis of ss 22 (irrelevant material); 37(2)(b) (disclosure of lawful methods or procedures for dealing with breaches of the law); 47B(b) (information communicated in confidence by a State government to the Commonwealth) and 47F (personal privacy).
3. On 7 June 2021 the applicant sought IC review of the Department's decision.
4. 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] During the IC review, the Department did not contend that the information in the documents which it had considered in its decision to be irrelevant was irrelevant, but contended that ss 37(2)(b), 47B(b) and 47F applied to that information.
5. The issues to be decided in this IC review are:

• whether the information in the documents is exempt under s 37(2)(b)
  • if not, whether the information is conditionally exempt under s 47B(b) or s 47F and, if so
  • whether giving the applicant access to the document at this time would, on balance, be contrary to the public interest (s 11A(5)).

1. In making my decision, I have had regard to the following: * the Department's decision and reasons for decision of 25 May 2021 * 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.

Prejudice to law enforcement methods and procedures exemption (s 37(2)(b))

1. The Department refused access to the documents on the basis that they are exempt under s 37(2)(b).
2. Paragraph 37(2)(b) applies to documents about lawful methods or procedures for preventing, detecting investigation or dealing with matters arising out the breaches or evasions of the law. It requires satisfaction of two factors. There must be a reasonable expectation that disclosure of the document will disclose a relevant method or procedure, and there must be a reasonable expectation or a real risk of prejudice to the effectiveness of that method or procedure arising from the disclosure.
3. The applicant did not make substantive submissions concerning the application of s 37(2)(b).
4. The Department submitted that the documents in issue are exempt under s 37(2)(b) because:
   • The VIT is a Victorian statutory authority whose primary function is to regulate the teaching profession in Victoria, including by conducting investigations in relation to compliance with the Education and Training Reform Act 2006 (Vic) (the Victorian Act)
   • The documents in issue clearly disclose a method or procedure by which VIT undertakes such investigations
   • Disclosure of the documents would prejudice the effectiveness of those methods as that would reveal the approach taken by the VIT to investigations and would enable individuals subject to the Victorian Act to take measures to avoid or undermine such investigations.
5. In relation to the first requirement of s 37(2)(b), I am satisfied that the disclosure of the documents in issue, other than information in the documents consisting of the names and contact details of State and Commonwealth government officials (staff information), would disclose lawful methods and procedures employed by the VIT to detect and investigate non-compliance with statutory requirements relating to the teaching profession applicable in Victoria.
6. In relation to the second requirement, I am satisfied that disclosure of the documents (other than the staff information) could reasonably be expected to prejudice the effectiveness of VIT's processes for regulating compliance with the Victorian Act. I consider that disclosure of the information in the documents could enable persons subject to the Victorian Act to take measures to evade the requirements of the Victorian Act or to avoid or compromise investigations under that Act.

1. Based on my review of the contents of the documents and the parties' submissions I am satisfied that the information in the documents, other than the staff information, is exempt under s 37(2)(b).

1. The Department contended that the staff information in the documents is conditionally exempt under s 47F.
2. Broadly, information is conditionally exempt under s 47F if it is 'personal information' and its disclosure in response to the applicant's FOI request would be 'unreasonable'. 'Personal information' in the FOI Act has the same meaning as it has in the Privacy Act 1988. The relevant definition is set out in Annexure A.
3. The staff information is information about identified particular individuals. As such I find it 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. Personal information will be conditionally exempt under s 47F if its disclosure would be unreasonable.
2. In summary, the Department contended that disclosure of the staff information would be unreasonable as:
   • staff contact details, and the involvement of the relevant staff in regulatory investigations, is not well known or available from publicly available sources, and
   • the personal information in question, being information about staff involved in investigations and disciplinary matters, is of a nature that if disclosed has the potential to expose those staff to the risk of harm or harassment.
3. The VIT made similar submissions concerning s 47F. The applicant did not make submissions concerning s 47F.
4. I have considered the parties' submissions in relation to this information, and the mandatory factors in s 47F(2) of the FOI Act as well as the other relevant factors set out below.
5. The public interest in the transparency of government decisions and actions of government officers is relevant to the reasonableness of disclosure of the names and contact details of governmental employees. However, I give limited weight to this factor in the present case, as I do not consider disclosure of this information would, given its nature and context, contribute meaningfully to meeting this public interest.
6. I give significant weight to the following factors which suggest disclosure of the personal information presently under consideration would be unreasonable:
   • The personal information of the individuals is not well known or publicly available and there is nothing before me to indicate that the individuals concerned are known to be associated with the matters dealt with in the documents.
   • The documents relate to investigations of possible contraventions of the law.
   • Disclosure of the information could reasonably be expected to cause detriment and stress to the individuals in question, potentially through unwanted contact. Disclosure would significantly prejudice the privacy of these individuals in circumstances where they have not been consulted and the release of their names would not substantively promote the public interest in government transparency or integrity

1. Having weighed these relevant factors, I consider that disclosure of the material would involve an unreasonable disclosure of personal information because the factors against disclosure outweigh those in favour of disclosure.

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

1. As I have found that staff information is conditionally exempt under s 47F, I am required to consider whether it would be contrary to the public interest to give the applicant access to that conditionally exempt information at this time.
2. The applicant did not make submissions in relation to the public interest. The Department and VIT submitted that the release of the personal information would not be in the public interest because that would unreasonably disclose the personal information of individuals.
3. 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.
4. 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.
5. In my view, release of the conditionally exempt information would promote the objects of the FOI Act. The general public interest in making information held by the Government accessible to the public favours disclosure of the conditionally exempt material. However, I consider that this public interest consideration carries little weight in relation to the staff information. Disclosure of this information would not reveal information about the Government's operations, or the reasons for a government decision. Nor would it enhance the scrutiny of government decision-making in any meaningful way, or enable effective oversight of public expenditure. Further due to the passage of time, the staff information lacks currency.
6. I consider that disclosure of the conditionally exempt material could reasonably be expected to cause detriment and stress to the individuals in question and prejudice the privacy of those individuals.
7. Finding
8. On balance, I consider that the potential harm that disclosure of the conditionally exempt personal information could cause to the individuals concerned outweighs any benefit to the public interest of such disclosure. Accordingly, I find that giving access to the staff information would be contrary to the public interest at this time, and therefore this is information is exempt.

1. Given the findings I have made, it is unnecessary for me to consider whether s 47B(b) applies to the documents.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Prejudice to law enforcement methods and procedures (s 37(2)(b))

(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

As discussed in the FOI Guidelines and in IC review cases,[5] for a document to be exempt under s 37(2)(b) of the FOI Act, it would need to be shown that disclosure would, or could, reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law, the disclosure of which would, or could be reasonably likely to, prejudice the effectiveness of those methods or procedures.

This exemption requires satisfaction of 2 factors. There must be a reasonable expectation that a document will disclose a method or procedure and a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure.114 If the only result of disclosing the methods would be that those methods were no surprise to anyone, there could be no reasonable expectation of prejudice. However, where a method might be described as 'routine', but the way in which it is employed can reasonably be said to be 'unexpected', disclosure could prejudice the effectiveness of the method.[6]

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 it has in 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.

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, 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'.

In addition to the mandatory factors outlined at s 47F(2) of the FOI Act, the FOI Guidelines explain that other relevant factors include:

• whether the author of the document is identifiable
• whether the document contains third party personal information
• whether release of the document would cause stress to the third party
• whether no public purpose would be achieved through release.

• the nature, age and current relevance of the information
• any detriment that disclosure may cause to 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.

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.

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.[7]

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.[8]

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] In particular ss 37(2)(b) and 47F 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).

[4] Relevant provisions of the Guidelines are set out in Annexure A.

[5] Generally, see FOI Guidelines at [5.124] - [5.129]; 'AED' and Australian Criminal Intelligence Commission (Freedom of information) [2023] AICmr 67 ; 'LR' and Australian Federal Police (Freedom of information) [2017] AICmr 58; and 'DP' and Department of Immigration and Border Protection [2014] AICmr 125.

[6] FOI Guidelines at [5.127] (footnotes omitted).

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

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