Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982**

Freedom of Information - Whether documents contain deliberative matter prepared for deliberative processes - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 11A and 47C

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the revised decision of Services Australia of 11 July 2022[1] as further revised on 8 April 2025. I substitute my decision that:
   • the material Services Australia found to be conditionally exempt under s 47C only is conditionally exempt under that provision, but disclosure would not be contrary to the public interest
   • the remaining material which Services Australia deleted from the documents is out of scope of the IC review and irrelevant under s 22[2]
2. Within 28 days of this decision:
   • Services Australia 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 material that I have found to be irrelevant, and
   • Services Australia 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 47C of the FOI Act to documents related to the processing of requests for internal review under s 129 of the Social Security (Administration) Act 1999 (SSA Act). It is primarily of interest to the parties in relation to the specific documents sought.

1. In summary, the applicant applied to Services Australia for access to documents related to a statement Services Australia made in correspondence which indicated their matters are pending or under consideration.
2. Services Australia maintains certain material in the documents is exempt under ss 42, 47C, 47E(d), and 47F and that certain material is irrelevant (s 22). However, in their IC review application and during the IC review, the applicant confirmed they only seek review of the deletions made under s 47C (the 47C material) and not material exempted under other provisions.[3]
3. Therefore, Services Australia's deletions under provisions other than s 47C (ss 42, 47(1)(b), 47E(d), 47F and 22) as well as s 24A, are not at issue. As Services Australia maintains some of the 47C material is exempt under other provisions, which the applicant does not contest, only a small number of deletions (under s 47C only) remain at issue.[4] The issue to be decided in this Information Commissioner review (IC review) is whether this material is conditionally exempt under s 47C of the FOI Act, 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)).
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.[5]
5. In making my decision, I have had regard to the following:
   • the revised decisions and reasons for decision of 11 July 2022 and 8 April 2025
   • the documents at issue
   • the FOI Act[6]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[7] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[8] and
   • the parties' submissions[9].

1. A document is conditionally exempt under s 47C if its disclosure would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or a Minister or the Government of the Commonwealth.
2. Services Australia found that parts of the documents contain advice, opinions or recommendations in relation to the agency's deliberative functions (namely, the processing of requests for internal review under s 129 of the SSA Act. The applicant's submissions focus on their view that it would not be contrary to the public interest to disclose the material. I have considered their submissions on this point below.
3. I have examined the material and I consider it is deliberative as it contains opinion and recommendations in relation to the agency's deliberative function, being the processing of requests for internal review under s 129 of the SSA Act.

1. For the above reasons, I am satisfied that the material is conditionally exempt under

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

1. Having found the material to be conditionally exempt under s 47C 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.[10]
2. In summary Services Australia submitted:
   • In making its decision it considered the extent to which disclosure would promote the objects of the FOI Act and allow a person to access his or her personal information.
   • It considered the FOI Guidelines and previous decisions[11] and does not consider that these authorities mean that claims about inhibiting frankness and candour can never be a public interest factor against disclosure. Rather, it is likely that the claims relating to frankness and candour should be related to, and based on, a government practice, program or policy (see the Guidelines at [6.81]).
   • It is essential that officers of the agency are able to deliberate, exchange views and make recommendations in an uninhibited manner in relation to the processing of requests for internal review under s 129 of the SSA Act, and about decision-making under that statutory scheme. Those deliberations will ordinarily result in a decision with publicly available reasons that are subject to review.
   • These deliberations of agency officers in a specific government process under legislation require frankness and candour as an essential pre-condition.
3. In summary, the applicant submitted:
   • The only real factor relied on by Services Australia for its position was disclosure would inhibit frankness and candour (although there is a reference in the s 55G decision to whether disclosure could "prejudice the agency's ability to meet its obligations under the FOI Act" which is not reasoned or explained at all).
   • The inhibition of frankness and candour either cannot be a public interest factor against disclosure (per the decision of the AAT in Rovere) or alternatively it is a factor that carries no weight by itself but must be related to some particular practice, process, policy or program in government (per the decision of the AAT in Dreyfus and 6.245 - 6.252 of the FOI Guidelines).
   • The inhibition of frankness and candour appears to be the sole factor relied upon by Services Australia, and plainly this is not a case where the public interest is clearly, heavily weighted against disclosure of a document of a minister, or a document that would affect the effective and efficient functioning of government.
4. I have reviewed an unedited copy of the material which Services Australia deleted under s 47C. In my view disclosure of the material, which relates to decisions and actions taken by Services Australia in relation to the applicant, would promote the objects of the FOI Act and provide the applicant with access to some information concerning their matter. It would also enhance the scrutiny of government actions and decision making concerning the applicant. Though I do not give these factors a lot of weight having regard to the particular material at issue, I consider these factors weigh in favour of disclosure.
5. The FOI Guidelines note that frankness and candour should be approached with caution.

6.249 Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia's democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished. > > 6.250 Agencies should therefore start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.[214] > > ... > > 6.252While frankness and candour claims may still be contemplated when considering deliberative material and weighing the public interest, they should be approached cautiously and in accordance with ss 3 and 11B. Generally, the circumstances will be special and specific.

6. Services Australia has deleted a small amount of material under s 47C only. Based on my review of the particular material which Services Australia deleted under this provision only, it is not apparent to me that the material is sufficiently sensitive that its disclosure would be likely to impact frankness and candour in any meaningful way. I consider it is reasonable in these circumstances to expect that deliberations of this nature may be disclosed to the applicant given the deliberations were related to matters involving them. On this basis I consider the factors against disclosure are outweighed by the factors favouring disclosure, which I discussed above at [16].

1. For the above reasons, on balance, I consider that Services Australia has not discharged its onus and accordingly the public interest factors in favour of disclosure, which I have given greater weight, outweigh the factors against disclosure.

General Manager, Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

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

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.

(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

Section 47C(2) of the FOI Act declares that deliberative matter does not include operational information (defined in section 8A of the FOI Act) or purely factual material.

(3) This section does not apply to any of the following:

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency;

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

As discussed in the FOI Guidelines, a decision maker must be satisfied of 3 requirements for this conditional exemption to apply:

Firstly, the decision maker must be satisfied that information within the scope of the request includes deliberative matter. Secondly, if the decision maker is satisfied, they are then required to be satisfied that the deliberative matter was obtained, prepared or recorded in the course of, or for the purposes of, deliberative processes. Thirdly, the decision maker must be satisfied that the deliberative processes were involved in the functions exercised by or intended to be exercised by an Australian Government agency or minister.[12]

Deliberative matter is content that is in the nature of, or relating to either:

• an opinion, advice or recommendation that has been obtained, prepared or recorded or

• a consultation or deliberation that has taken place, in the course of, or for the purposes of, a deliberative process of the government, an agency or minister (s 47C(1)).

'Deliberative matter' does not include operational information or purely factual material (s 47C(2)). 'Operational information' is defined in s 8A and is information that an agency must publish under the Information Publication Scheme (see Part 13 of the FOI Guidelines).[13]

The FOI Guidelines state that the conditional exemption does not apply to:

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters (see [6.73] - [6.72] below)

(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency (currently none are prescribed)

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function (s 47C(3)).[14]

Agencies and ministers should only claim this conditional exemption in clearly applicable circumstances, noting that s 47C is subject to an overriding public interest test that is weighted toward disclosure. Not every document generated or held by a policy area of an agency is 'deliberative' in the sense used in this provision, even if it appears to deal with the development or implementation of a policy. This is reinforced by the language of the FOI Act which describes what does not constitute 'deliberative matter'. A decision maker should ensure that the content of a document strictly conforms with the criteria for identifying 'deliberative matter' prepared or recorded for the purposes of a 'deliberative process' before claiming this conditional exemption (see [6.46] above and [6.59] - [6.58] below).[15]

In relation to assessing 'deliberative matter' the FOI Guidelines explain:

• The presence or absence of particular words or phrases is not a reliable indication of whether a document includes deliberative matter. The agency should assess the substance and content of the document before concluding it includes deliberative matter. Similarly, the format or class of the document, such as a ministerial brief or submission, or the document being a draft version of a later document does not automatically designate the content as deliberative matter.

Material that is not deliberative matter, where not already excluded as operational information, purely factual material or a scientific report, would include: > > • content that is merely descriptive > > • incidental administrative content > > • procedural or day to day content > > • the decision or conclusion reached at the end of the deliberative process > > • matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process.[16]

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.[17]

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.[18]

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 decision was initially deemed. The request was made on 9 March 2021 and the agency was required to provide the applicant with a decision in relation to the request within 30 days. As a decision was not provided to them in the statutory timeframe, the principal officer of the agency was deemed to have refused the request under s 15AC of the FOI Act.

[2] For completeness, searches (s 24A), which was addressed in Services Australia's purported statement of reasons, which it provided to the Office of the Australian Information Commissioner subsequent to its deemed decision, is also out of scope of the IC review.

[3] Applicant's emails of 25 March and 21 April 2025 and the IC review application.

[4] These include deletions under s 47C only on pages 52 and 53 of the documents at issue.

[6] Section 11A and 47C as set out in Annexure A.

[7] 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] For completeness, this includes the statement of reasons of 1 July 2021 which the Department issued subsequent to its deemed decision. Services Australia also provided confidential submissions. The OAIC accepted the confidential submissions on the basis they contain references to exempt material.

[11] In weighing the public interest factors above, I have carefully considered the FOI Guidelines at [6.78] - [6.85], along with the Tribunal decisions of Rovere and Secretary, Department of Education and Training [2015] AATA 462 and Dreyfus and Secretary Attorney-General's Department [2015] AATA 962 in my assessment of the extent to which disclosing the s 47C material in this matter would inhibition of frankness and candour in a manner contrary to the public interest.

[16] FOI Guidelines at [6.61] - [6.62] (footnotes omitted).

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

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