1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Department of Defence (the Department) of 15 March 2021, as varied on 11 October 2023. I substitute my decision that:
   • the material in Documents 5, 8 and 14 that the Department found to be exempt under s 47G is not conditionally exempt, and
   • the remaining material that the Department found to be either exempt in the documents under ss 47F or 47G, or irrelevant under s 22, is irrelevant.[1]
2. Within 28 days of this decision:
   • the Department 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 exempt or irrelevant material, and
   • the Department 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 the application of s 47G of the FOI Act to documents relating to a review of changes to Australian Defence Force modes of separation for superannuation purposes. It is primarily of interest to the parties in relation to the specific documents sought.

1. On 2 November 2020, the applicant applied to the Department for access to documents relating to a 'Review of Changes to ADF Modes of Separation for Superannuation Purposes'. The applicant sought documents which 'instigated and called for the production of the review including, but not only, correspondence, advertisements, terms and conditions, tender process, tender award and minutes of meetings'.
2. The Department identified 14 documents in scope of the request and decided to release one document in full and partially release 13 documents with material claimed to be exempt under ss 47F and 47G and with irrelevant material deleted under s 22(1)(b)(ii). In its internal review decision the Department decided to provide the applicant with access to additional material previously found to be exempt under s 47G in Documents 5 and 14.
3. The applicant sought Information Commissioner review (IC review) of specific s 47G exemption claims made by the Department in Documents 5, 8 and 14, in its internal review decision (see Annexure A).
4. During the course of this IC review, the Department issued a revised decision under s 55G of the FOI Act releasing further material in Document 8. Following this decision, the applicant advised the Office of the Australian Information Commissioner (OAIC) they continued to seek IC review of the s 47G exemption claims made by the Department in relation to Documents 5, 8 and 14.
5. Given the above, I am satisfied that the material claimed to be exempt in the documents at issue by the Department under s 47F, and the material deleted under s 22(1)(b)(ii), is outside the scope of this IC review. I am further satisfied, having reviewed the applicant's IC review request at Annexure A, along with unedited copies of Documents 5, 8 and 14, that the material remaining in scope relates to dollar amounts in Documents 5, 8 and 14, and methodology and a draft work schedule in Document 8.[2]
6. The issue to be decided in this IC review is whether the material that the Department maintains is conditionally exempt under s 47G 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)).
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 Department's purported decisions and reasons for decisions of 1 December 2020 and 12 January 2021, its internal review decision and reasons for decision of 15 March 2021 and its s 55G decision and reasons for decision of 11 October 2023
   • 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 Department submitted that the documents at issue relate to the engagement of a consultancy firm and consist of a proposal to engage a contractor, the contract proposal of the contractor and the contract approval minute.
2. The Department further submitted that the material that has been exempted under s 47G can generally be described as:
   • the methodology used by the third-party business to analyse the information obtained from the stakeholder
   • the information that will be included in the report, including information on further consultations that will occur and when
   • the fee structure
   • cost of the contract, including a breakdown of the figures, and
   • a draft work schedule.
3. A document will be conditionally exempt if it discloses information (business information) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, where the disclosure of the business information would, or could reasonably be expected to:
   • unreasonably affect the organisation adversely in respect of its lawful business, commercial or financial affairs (s 47G(1)(a)), or
   • prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency (s 47G(1)(b).
4. Having reviewed the Department's decisions, I am satisfied that it is claiming the s 47G(1)(a) conditional exemption over the material at issue. Accordingly, I do not need to consider the s 47G(1)(b) conditional exemption in this IC review.

Whether the information at issue is business information

1. The operation of s 47G depends on the effect of disclosure rather than the precise nature of the information itself. Nevertheless, the information in question must have some relevance to a person in respect of their business or professional affairs or to the business, commercial or financial affairs of an organisation or undertaking.[7]
2. The term 'business affairs' has been interpreted to mean 'the totality of the money-making affairs of an organisation or undertaking as distinct from its private or internal affairs.[8] Accordingly, in this IC review, for the s 47G conditional exemption to apply, the documents must concern 'AWR's' money-making affairs.
3. I have examined an unedited copy of the documents. I am satisfied that the relevant material in Documents 5,[9] 8[10] and 14[11] comprises 'AWR's' business information.

Whether disclosure would have an unreasonable adverse effect on the third-party's business affairs (s 47G(1)(a))

1. When considering whether disclosure of a document would have an unreasonable adverse effect on a person's business or professional affairs, the FOI Guidelines relevantly explain:

The presence of 'unreasonably' in s 47G(1) implies a need to balance public and private interests. The public interest, or some aspect of it, will be one of the factors in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is unreasonable. A decision maker must balance the public and private interest factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a), but this does not amount to the public interest test of s 11A(5) which follows later in the decision process [footnotes omitted].[12]

...The test of reasonableness applies not to the claim of harm but to the objective assessment of the expected adverse effect. For example, the disclosure of information that a business' activities pose a threat to public safety, damage the natural environment, or that a service provider has made false claims for government money, may have a substantial adverse effect on that business but may be reasonable in the circumstances to disclose. Similarly, it would not be unreasonable to disclose information about a business that revealed serious criminality. These considerations require weighing the public interest against a private interest - preserving the profitability of a business. However at this stage it bears only on the threshold question of whether the disclosure would be unreasonable [footnotes omitted].[13]

3. In documentation provided by the applicant in support of their request for IC review, the applicant's contentions included that:
   • 'AWR' was absorbed by a large overseas company, no longer operates and disclosure would have no unreasonable adverse effect on the business, profitability, professional, commercial or financial affairs
   • it is now 12 years since 'AWR' produced the review and industry 'methodology' has progressed and been refined since that time
   • the delegate has not taken the above into consideration to support citing or quantifying any specific harm to the organisation
   • a balance of public and private interests in this matter leans overwhelmingly in favour of ex-servicemen and subsequent disclosure
   • there is no reasonable expectation that disclosure would cause the consequences specified by the delegate under s 47G
   • dollar amounts are no longer relevant considering a 12-year old contract by an organisation no longer operating
   • 'AWR' has a history of bribery and corruption, and
   • they find it unacceptable that Defence can release detailed confidential documents including names, contract amounts etc for Defence helicopters, submarines, equipment etc[14] but become obstructive and uncooperative with veterans' requests for rehabilitation and entitlement information.
4. The Department consulted 'AWS' which acquired 'AWR'. In summary, the Department submitted that:
   • the methodologies in the documents at issue remain current and releasing this information could devalue the investments made by the third-party in developing these methodologies and result in them losing their competitive advantage
   • the information in the documents is commercially sensitive
   • the third-party regards their methodology as their trade secret
   • disclosure of this information would provide an unfair advantage to the third party's competitors by providing insight into the third party's business, including their work scheduling and pricing. This would, or could reasonably be expected to, disadvantage future work opportunities for the third party, and
   • in response to the applicant's allegations regarding bribery and corruption by 'AWR', the misconduct occurred well before 'AWS' acquired 'AWR' and did not involve any current 'AWS' employees, officers, or directors.
5. I have reviewed an unedited copy of the documents. Based on my review of the material, I am not satisfied that disclosure of this material could allow 'AWS's' competitors to replicate its methodology since it is not sufficiently detailed or complex and the commercial price points are now over 15 years old. Given the nature of the material and the passage of time, I am not satisfied that disclosure of this material would have an unreasonable adverse effect on 'AWS's' business affairs.
6. I am not persuaded that the Department has adequately discharged its onus in establishing that disclosure of the relevant material in this case could reasonably be expected to have an unreasonable adverse effect on 'AWS's' lawful business, commercial or financial affairs. In particular, the Department did not provide any submissions in relation to why some of the material relating to 'AWS's' methodology in Document 8 was released and other material was claimed to be exempt.

1. The material in Documents 5, 8 and 14 is not conditionally exempt under s 47G(1)(a).

Applicant's request for internal review by the Department[15]

I refer to FOI application 200/20/21, decision 30/11/20 and supplementary decision 11/1/21 (attached) and request a review of the redaction decisions under s47G(a) and s47G:

1. Dollar amounts in the following documents released 11/1/21:

(a) Document 5, page 1, item 3 "estimated value $..."

(b) Document 5, page 2, item 9 "Funds of AUS $..."

(c) Document 14, page 2, item 9 "it is anticipated that $..."

(d) Document 14, page 2, item 10 "The $... figure is based on knowledge of similar types of work"

(e) Document 14, page 2, item 11 "Funds of AUS $..."

(f) Document 14, page 3, under heading "Funds available"

"Amount of procurement $..."

"GST $..."

"Total value of procurement $..."

Reason for Objection

The above Defence estimates/approvals/allocations were documented before invitations to quote were sent. The amounts are not ['AWR's'] business affairs, do not fall under s47G and should be disclosed.

2. Redactions in the following documents released 11/1/21:

(a) Document 8, pages 7 to 10 inclusive i.e. all redactions under "2.1 Methodology"

(b) Document 8, page 16 "Annex 'A' Draft Work Schedule"

(c) All dollar amounts in the released documents.

Reason for Objection

The attached document extract raises serious concerns about Defence procedures under the legislation since insertion of the relevant sections in 1972 and in particular:

• Invalid and unlawful decisions.

• Applicants are deprived access to AAT independent merits review by Defence thereby breaching the rules of natural justice.

• Failure to apply the correct statutory test in decision making.

• Usurpation of CSC discretionary power to make decisions without jurisdiction.

• Unlawful application of the criminal standard of proof or the Briginshaw standard when making decisions instead of forming an administrative hypothesis.

• Failure to consider circumstantial evidence or evidence that is not contemporaneous.

• Inconsistent and biased decisions.

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.

(1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:

(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or

(b) could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

Section 47G(2) - (3) of the FOI Act contain exceptions to the exemption in s 47G(1) of the FOI Act.

As stated in the FOI Guidelines, this conditional exemption does not apply in the following circumstances:

... if the document contains only business information about the FOI applicant (s 47G(3)). Where the business information concerns both the FOI applicant and another business, the provision may operate to conditionally exempt the FOI applicant's information, but only if the FOI applicant's business information cannot be separated from the information of the other business or undertaking.

... to trade secrets or other information to which s 47 applies (s 47G(2)). In other words, a decision maker should consider an exemption under s 47 for documents containing trade secrets or other information to which s 47 applies if the circumstances call for it. This is a limited exception to the normal rule that more than one exemption may apply to the same information (see s 32).[16]

The FOI Guidelines explain that the operation of s 47G of the FOI Act depends on the effect of disclosure, rather than the precise nature of the information itself.[17] Notwithstanding this, the information must have some relevance to a person in respect of their business or professional affairs or to the business, commercial and financial affairs of the organisation.[18]

The use of the term 'business or professional affairs' distinguishes an individual's personal or private affairs and an organisation's internal affairs. The term 'business affairs' has been interpreted to mean 'the totality of the money-making affairs of an organisation or undertaking as distinct from its private or internal affairs.[19]

In relation to the question of unreasonableness, the FOI Guidelines state:

The presence of 'unreasonably' in s 47G(1) implies a need to balance public and private interests. The public interest, or some aspect of it, will be one of the factors in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is unreasonable. A decision maker must balance the public and private interest factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a), but this does not amount to the public interest test in s 11A(5) which follows later in the decision process.[20]

The test of reasonableness applies not to the claim of harm but to the objective assessment of the expected adverse effect. For example, the disclosure of information that a business' activities pose a threat to public safety, damage the natural environment, or that a service provider has made false claims for government money, may have a substantial adverse effect on that business but may not be unreasonable in the circumstances to disclose. Similarly, it would not be unreasonable to disclose information about a business that revealed serious criminality. These considerations require weighing the public interest against a private interest - preserving the profitability of a business. However at this stage it bears only on the threshold question of whether disclosure would be unreasonable.[21]

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 applicant submitted they were only seeking Information Commissioner review (IC review) of the Department's s 47G exemption claims in Documents 5, 8 and 14.

[2] Items 1(f) and 2(a) - 2(c) of Annexure A remain in scope of this IC review. The remaining material referred to at Annexure A has been released to the applicant by the Department.

[4] Sections 11A and 47G as set out in Annexure B.

[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).

[8] FOI Guidelines at [6.191] citing Re Mangan and The Treasury [2005] AATA 898 citing Cockcroft and Attorney-General's Department and Australian Iron and Steel Pty Ltd (party joined) (1985) 12 ALD 462.

[9] This is the contract approval minute to engage 'AWR'.

[10] This is 'AWR's' contract proposal.

[11] This is a proposal approval minute to engage a contractor.

[14] The applicant cited Defence FOI Log 5/11/20 098/20/21.

[15] This request was made by the applicant on 17 January 2021. The applicant sought IC review on the same terms. Some of the material was released to the applicant through the Department's internal review decision and its s 55G revised decision.

[16] FOI Guidelines at [6.179] - [6.180].

[19] FOI Guidelines at [6.191] (footnotes omitted).

[20] FOI Guidelines at [6.184] (footnotes omitted).

[21] FOI Guidelines at [6.185] (footnotes omitted).