'AWH' and Australian Federal Police (Freedom of information) [2025] AICmr 97 | Case summary

The applicant made two requests for access to the AFP:

The Workplace Health and Safety (WHS) investigation report from Mills Oakley, provided to the AFP by [name individual] in August 2019.
All material held by the AFP in relation to a specific CRAMS complaint number.

The applicant agreed to extend the statutory timeframe for both requests by 30 days, under s 15AA of the FOI Act.

The OAIC granted the AFP further extensions of 14 days in relation to the applicant's first request (to 25 January 2021) and 30 days in relation to the applicant's second request (to 10 February 2021). This was granted under s 15AB(2).

Deemed access refusal decision of the AFP in relation to the applicant's first request.

Deemed access refusal decision of the AFP in relation to the applicant's second request.

The applicant sought IC review of the AFP's deemed access refusal decisions.

The OAIC conducted preliminary inquiries with the Department about the status of the applicant's request, requesting a response by 12 April 2021.

The OAIC granted the AFP with an extension of time to respond to the OAIC's preliminary inquiries until 21 April 2021.

The AFP advised the OAIC that it would provide the applicant with a substantive decision by 28 April 2021.

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.

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.[48]

Whether reasonable steps taken to find documents (s 24A)

Section 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that it cannot be found or does not exist.

The Act is silent on what constitutes 'all reasonable steps'. The meaning of 'reasonable' in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.

Agencies and ministers should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's operating environment or the minister's office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:

the subject matter of the documents
the current and past file management systems and the practice of destruction or removal of documents, and
the record management systems in place
the individuals within an agency or minister's office who may be able to assist with the location of documents, and
the age of the documents.[49]

Certain operations of agencies exemption (s 47E(c))

Section 47E(c) 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 management or assessment of personnel by the Commonwealth or by an agency.

the predicted effect needs to be reasonably expected to occur... There must be more than merely an assumption or allegation that damage may occur if the document is released.

...

An agency cannot merely assert that an effect will occur following disclosure. The particulars of the predicted effect should be identified during the decision-making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied on, the relevant particulars and reasons should form part of the decision maker's statement of reasons, if they can be included without disclosing exempt matter (s 26, see Part 3).[50]

For this conditional exemption to apply, the document must relate to either:

• the management of personnel - including broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and work health and safety

• the assessment of personnel - including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.[51]

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.[52]

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,[53] 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'.[54]

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.[55]

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.[56]

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:

(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.[57]

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.[58]

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] On the question of the processing deadlines that now apply, see Fletcher and Prime Minister of Australia [2013] AICmr 11 at [33]-[38].

[2] The AFP's decision was made outside the statutory timeframe. The background to the decision is set out in Annexure B. Given s 54Y of the FOI Act, the AFP's decision of 28 April 2021 became the decision under review.

[3] The AFP also applied s 47E(d) of the FOI Act to some group email addresses and position titles (for example, see Folio 164). However, this exemption contention has not been addressed by the AFP over the course of this IC review, nor was it addressed in the AFP's original decision or schedule of documents dated 28 April 2021. This information was also released in the related matter 'AWC' and therefore, the exemption contention in s 47E(d) cannot apply given the information is already in the public domain.

[5] Sections 11A, 22, 24A, 47E(c) and s 47F as set out in Annexure C.

[6] 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).

[9] See for example, Folios 55, 66 and 164 of the documents at issue.

[10] Refer Folios 55 and 164 of the documents at issue in 'AWC'.

[11] The AFP provided confidential submissions on 1 July 2021 providing details regarding the subject matter of the complaint number listed in the applicant's request, confirming it did not relate to the applicant nor was it investigated by the officer listed in the applicant's request.

[12] FOI Guidelines [3.54], citing Re Gould and Department of Health [1985] AATA 63.

[14] FOI Guidelines [3.110], citing 'BI' and Professional Services Review [2014] AICmr 20, applying Re Anderson and AFP [1986] AATA 79.

[16] The AFP's Complaint Recording and Management System.

[17] The documents confirm the person named in the applicant's request was the PRS Investigator.

[18] FOI Guidelines at [6.90] and [6.92].

[19] FOI Guidelines at [6.103] (footnote omitted).

[20] The AFP refers to De Tarle and Australian Securities and Investments Commission [2016] AATA 230 and the FOI Guidelines [6.106]. The AFP also refers to the decision of Price and Attorney-General's Department [2016] AATA 1044, at [29]-[36] per Deputy President Molloy, which the AFP submits is analogous to the current matter.

[21] at [29]-[36] per Deputy President Molloy.

[22] The applicant explains that the AFP's decision to complete a WHS investigation and not treat the referral of the code of conduct allegations as alleged by me during the course this WHS investigation, as a proper CRAMS investigation is contrary to section 40SA of the Australian Federal Police Act 1979.

[23] See De Tarle and Australian Securities and Investments Commission [2016] AATA 230; 'PC' and Australian Taxation Office (Freedom of information) [2018] AICmr 53; Virginia Plowman and Australian Securities and Investments Commission (Freedom of information) [2018] AICmr 5; 'PC' and Australian Taxation Office (Freedom of information) [2018] AICmr 53; QZ' and Australian Criminal Intelligence Commission (Freedom of information) [2019] AICmr 57; Virginia Plowman and Australian Securities and Investments Commission (Freedom of information) [2020] AICmr 59; and 'YB' and Department of Veterans' Affairs [2021] AICmr 52.

[24] See 'AOS' and Department of Finance (Freedom of information) [2024] AICmr 220 (23 October 2024) and Australian Broadcasting Corporation and Department of Finance (Freedom of information) [2023] AICmr 136.

[31] As above in 'AWC', in which the applicant was consulted as a third party and consented to the release of information relating to them in that matter.

[37] See Part 10 of the WHS Investigation Report.

[38] See [11.9]-[11.12] and [11.20] of the WHS Investigation Report including headings and introductory paragraphs.

[39] One such email chain relates to another FOI request that was received by the AFP in relation to the investigations, which are the subject of the applicant's requests (Document 25). It contains the name of the individual who made the FOI request and the background to their request.

[41] Refer Folios 184-185, 189-191, 202, 214-216 (216-218 in 'AWC'), 242-246 (245-249 in 'AWC'), 252-256 (255-259 in 'AWC'), 260-265 (263-268 in 'AWC'), 268-269 (271-272 in 'AWC') and 282-283 (285-286 in 'AWC').

[42] To remove any doubt, these sections of the CRAMS file are not exempt as they have been released in the related matter, 'AWC'. However, the names of third party individuals to this IC review which were involved in the investigation and their pronouns are exempt.

[44] See [43] above and Part 11 of the WHS Investigation Report.

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

[46] I have found the name of third party individuals involved in the investigation to be conditionally exempt under s 47E(c) and the applicant has agreed to the redaction of the personal information of AFP officers below the Senior Executive Service level.

[47] I note this is consistent with the approach taken by Commissioner Hardiman in 'ACQ' referred to at [35] above.

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

[49] FOI Guidelines at [3.88] - [3.89]. For further information, see FOI Guidelines at [3.85] - [3.94]; 'RD' and Comcare (Freedom of information) [2019] AICmr 61; 'PK' and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 65; 'PI' and Department of Human Services (Freedom of information) [2018] AICmr 62; 'PF' and Department of Human Services (Freedom of information) [2018] AICmr 59; 'OP' and Department of Home Affairs (Freedom of information) [2018] AICmr 43; Josh Taylor and Prime Minister of Australia (Freedom of information) [2018] AICmr 42.

[51] FOI Guidelines at [6.103] (footnote omitted).

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

[53] 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.

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

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

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

Information Act 1982

Review Tribunal Rules 2024

Review Tribunal Act 2024

Federal Police Act 1979

The AFP submits, in summary:
- The WHS Investigation Report was prepared by an external consultant engaged by the AFP in relation to a workplace health and safety review arising from alleged inappropriate behaviour. The CRAMS investigation (the PRS Investigation) was then undertaken, in order to investigate and determine whether any of the allegations constituted a conduct issue in accordance with the AFP Commissioner's Order on Professional Standards.
- The AFP Better Practice Guide for Conducting Workplace Incident and Hazard Investigations provides that information within incident reports is confidential and not to be disclosed without the express permission of the affected person. This confidentiality also extends to the same material in the CRAMS documents and the AFP's internal deliberations in the course of that investigation.
- The CRAMS file contains detailed allegations of workplace misconduct, including bullying complaints. The file contains communications with and information from other individuals involved in the allegations. This information includes mixed personal information and is implicitly confidential in nature.
The AFP further submits that in both processes, it is essential that investigations are informed by candid and factual information to make a fair and informed assessment. Release of information of this nature could reasonably be expected to have a substantial and adverse effect on the AFP's management of personnel:
- Without the assurance of confidentiality, employees would be reluctant to participate in or provide necessary information in future investigations concerning allegations made in the workplace. It could also reasonably be expected to discourage individuals from raising matters that may require investigation, by damaging the relationship of trust that the AFP has with its members and employees.[20]
- It is essential to the AFP's operation as an employer under workplace health and safety legislation that it is able to manage its staff in a manner that is consistent with that legislation, including the ability to investigate workplace complaints in a confidential manner.
- In the decision of Price and Attorney-General's Department [2016] AATA 1044, (Price),[21] the applicant sought access to material concerning himself where the exemption under s47E(c) had been claimed. The Tribunal accepted that the release of the information would have a significantly adverse impact on the respondent in managing its operations effectively and efficiently, in the context of confidential and sensitive investigations.
The applicant submits:
- The AFP have used the ss 47E(c) and 47F exemptions to universally exclude material relating to the WHS Investigation and CRAMS complaint/investigation including information relating to the CRAMS investigations process and outcomes.
- Decisions in relation to AFP's operations should only have weight if the AFP is undertaking its investigations in an 'expected manner'. The applicant does not believe the AFP has met this element of the conditional exemption, in relation to the PRS investigation.[22] The AFP's failure to follow the correct process, did not afford the applicant natural justice and has had a significant and irreversible effect on them.
- The applicant has been sent correspondence in the course of the investigation which identifies the other parties to the investigation and therefore, the decision in Price would appear irrelevant in relation to protecting their names.

As noted by former FOI Commissioner Hardiman in 'ACQ' and Australian Federal Police (Freedom of information) [2022] AICmr 79 (22 December 2022) ('ACQ'), the issue of whether disclosure of documents pertaining to a workplace investigation would discourage cooperation of agency staff members in response to future investigations has been canvassed in a number of IC review and AAT decisions.[23]
I note the AFP's submissions refer to the AAT decision of De Tarle and Australian Securities and Investments Commission [2016] AATA 230, in which Senior Member Isenberg accepted that candour is essential when an agency seeks to investigate complaints, especially those of bullying and harassment, as staff may be reluctant to provide information and cooperate with investigators if they were aware that the subject matter of those discussions would be disclosed and made public.
Having regard to this and other, more recent, IC review decisions,[24] I accept the AFP's contentions that the disclosure of the majority of the information that the AFP found to be exempt under s 47E(c), would likely discourage individuals from participating in future investigations of a similar nature. I consider the disclosure of this information, including the names of those individuals involved in the workplace investigation and the information provided by them in the course of the investigation, could reasonably be expected to cause those who experience future workplace incidents to be reluctant to report incidents and participate in investigations. I agree that outcome would have a substantial adverse effect on the AFP's ability to manage and assess its staff.

'AWH' and Australian Federal Police (Freedom of information) [2025] AICmr 97 (22 May 2025)

At a glance

Court

Decision date

Source

Judgment (91 paragraphs)

Legislation Cited (4)

Cases Cited (2)