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 internal review decision of the Department of Climate Change, Energy, the Environment and Water[1] (the Department) of 22 December 2020, as varied on 27 August 2024.
2. This decision is given on the same day as McArthur River Mining Pty Ltd and Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2025] AICmr 98, which is an IC review of the access grant decision made by the Department.

1. This decision discusses the application of s 47F of the FOI Act to the names of individuals appearing in documents provided to the Department for the purpose of compliance with conditions attached to an Environment Protection and Biodiversity Conservation approval. It is primarily of interest to the parties in relation to the specific documents sought.

1. On 3 September 2020, the applicant applied to the Department for access to the following documents pertaining to the McArthur River Mining Overburden Management Project (EPBC 2014/7210) approval (the EPBC approval):
   • the 'standard operating procedures for the collection and processing of all surface water, groundwater, soil and sediment samples required under conditions 6B, 6C,6D', as referred to in Part A, Condition 8 of the approval

• the report referred to in Part A, Condition 12 of the approval, and
• any correspondence or document from McArthur River Mining Pty Ltd which contains the notification to the Department of the date of commencement of the action as set out in Part B, Condition 1 of the approval.

1. On 2 November 2020, the Department identified 6 documents relevant to the request and decided to refuse access to the documents in full. In making its decision, the Department relied on the certain operations of agencies exemption (s 47E(d)) of the FOI Act.
2. On 2 December 2020, the applicant applied for internal review of the Department's decision.
3. On 22 December 2020, the Department decided to affirm its original decision.
4. The applicant subsequently applied for IC review of the Department's internal review decision.
5. During the course of the IC review, the Department decided to make a revised decision under s 55G of the FOI Act. Prior to making its revised decision, the Department undertook consultations with an affected third party with respect to the documents.
6. On 27 August 2024, the Department made its revised decision to give the applicant access to the documents in part. The Department also withheld the personal information of individuals under s 47F of the FOI Act. The Department notified the affected third party of this decision and deferred giving the applicant access to the documents until the expiry of the third party's review rights.
7. On 27 September 2024, the third party sought IC review of the Department's decision to grant access to information contained in the documents. In McArthur River Mining Pty Ltd and Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2025] AICmr 98, I affirmed the Department's decision.
8. 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.[2]
9. The issue to be decided in this Information Commissioner review (IC review) is whether the material that the Department maintains is conditionally exempt under s 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)).
10. In making my decision, I have had regard to the following:
    • the Department's decision and reasons for decision of 30 October 2020
    • the Department's internal review decision and reasons for decision of 22 December 2020
    • the Department's revised decision and reasons for decision of 27 August 2024
    • the documents at issue
    • the FOI Act[3]
    • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[5] and
    • the parties' submissions.

1. A document or material will be conditionally exempt under s 47F if it contains 'personal information', and disclosure in response to the applicant's FOI request would be 'unreasonable'.

Whether the material contains personal information

1. 'Personal information' under the FOI Act has the same meaning as the equivalent term in the Privacy Act 1988.[6] That definition is set out in Annexure A.
2. The Department explained that some of the information in the documents comprises the personal information of various third party individuals, including their names.
3. I have examined the documents and it is apparent that the relevant material comprises the names of various individuals who had reviewed or updated the documents. Accordingly, I am satisfied that this 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 its reasons for its revised decision, the Department explained that disclosure of the personal information would be unreasonable because it pertains to an individual's personal affairs, the information is private and not available in full or in part from publicly accessible sources.
2. The applicant did not provide any submissions which addressed the Department's application of s 47F.
3. I have examined an unedited and unredacted copy of the documents, and it is apparent that the individuals to whom the personal information relates are not employees of the Department and the individuals are not broadly known to be associated with the subject matter of the documents. Further, it does not appear that the individuals have consented to the disclosure of their personal information.
4. Having regard to the nature of the personal information and the context in which it appears in the documents, I also consider that disclosure would unlikely advance the public interest in the documents.
5. Accordingly, I consider the following factors weigh against disclosure of the personal information contained in the documents:
   • the personal information is not well known or publicly available - in particular, the individuals are not widely known to be associated with the matters raised in the documents
   • the individuals concerned have not consented to disclosure of their personal information
   • it is apparent from the nature and content of the documents that the individuals concerned would not have expected that their personal information would be disclosed more broadly.
6. In weighing the relevant factors, I consider that disclosure of the documents would involve an unreasonable disclosure of personal information, as the privacy interests of the individuals outweigh the factors in favour of disclosure in this case.

1. I find that the relevant material 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 material 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] In considering the public interest, I have had regard to the parties' submissions.
2. The applicant did not provide any submissions which addressed the public interest with respect to the material comprising the personal information of individuals
3. In its reasons for its revised decision, the Department acknowledged that disclosure of the personal information would promote the objects of the FOI Act. However, the Department explained that this public interest factor in favour of disclosure is outweighed by the factors against disclosure. The Department identified the following factors as relevant, whereby disclosure would:
   • prejudice an individual's right to privacy, and
   • adversely affect or harm the interests of the individuals concerned.
4. Based on my consideration of the relevant material, I accept the Department's contention that the factors against disclosure outweigh the factors in favour of disclosure. As I have discussed above, the relevant material comprises the personal information of various individuals whose identities are not broadly known. It does not appear that the individuals have consented to the disclosure of their personal information, nor would they have expected that their personal information would be publicly disclosed by the Department.
5. In balancing the public interest factors, I am satisfied that the factors against disclosure outweigh the factors in favour of disclosure in this case.

1. For the reasons set out above, I am satisfied that disclosure of the relevant material would be contrary to the public interest at this time.
2. The material that I have found to be conditionally exempt under s 47F is exempt from disclosure.

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 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.[8]

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,[9] 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'.[10]

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.[11]

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.[12]

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.[13]

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.[14]

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] The FOI request that is the subject of this review was made to the Department of Agriculture, Water and the Environment. On 1 July 2022, pursuant to machinery of government changes, the Department of Agriculture Water, and the Environment transitioned to the Department of Agriculture, Fisheries and Forestry and some of its functions were transferred to the Department of Climate Change, Energy, the Environment and Water which was established on 1 July 2022. For further information, see Department of Agriculture, Fisheries and Forestry, 'The government has announced Machinery of Government changes that affect this department' (Web page, 7 June 2022) .

[3] Sections 11A, 11B, and 47F set out in Annexure A.

[4] 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).

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

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

[9] 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 [6.137] - [6.138] (footnotes omitted).

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

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