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

Freedom of Information - Whether disclosure would prejudice lawful methods or procedures - (CTH) Freedom of Information Act 1982 s 37(2)(b)

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I vary the deemed decision of the Department of Home Affairs (the Department).[1] The material which the Department maintains is exempt under s 37(2)(b) of the FOI Act[2] is exempt under that provision, and staff and third party details are irrelevant under s 22.

1. This decision discusses the application of s 37(2)(b) to documents concerning the applicant's dealings with the Department at Australia's border. It is primarily of interest to the parties in relation to the specific documents sought.

1. On 19 April 2021 the applicant sought (in summary) access to documents concerning their interactions with departmental officers at Sydney airport in relation to their travel.
2. The Department maintains material in 4 documents is exempt under ss 37(2)(b) and 47E(d). The applicant disputes the Department's contentions.
3. The Department also maintains staff details and details of third parties are irrelevant under s 22. On 5 May 2025, the applicant confirmed they do not seek the names or contact details of staff and only seek information about themselves.[3] On this basis I accept that the material which the Department deleted under s 22 is irrelevant.
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.[4]
5. While the Department maintains the material is exempt under both ss 37(2)(b) and 47E(d), I consider the material is most appropriately dealt with under s 37(2)(b) and the issue to be decided in this IC review is whether the material is exempt under that provision.
6. In making my decision, I have had regard to the following:
   • the Department's purported decisions and reasons of 12 July and 16 September 2021
   • the documents at issue
   • the FOI Act[5]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[6] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[7] and
   • the parties' submissions.

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

1. Section 37(2)(b) requires satisfaction of two 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.
2. The Department provided confidential and open submissions in support of its claim that the material is exempt under s 37(2)(b). The Office of the Australian Information Commissioner (OAIC) accepted the confidential submissions on the basis they contain references to exempt material. The Department provided an open version of the submission, which was exchanged with the applicant.
3. In its open submissions the Department submitted:
   • The material would disclose information about certain matters or circumstances that may cause individuals to be intercepted at the border, and associated procedures.
   • The disclosure of this information would be reasonably likely to impact on current investigative methodology and relationships both domestically and internationally that support Australian government investigative capabilities.
4. The Department advised that disclosure would enable individuals with authoritative information about how they can modify their behaviour when travelling to and from Australia to evade detection by the Australian Border Force (ABF) or other law enforcement agencies. Any modification of an individual's behaviour may assist such individuals to subvert the method and evade further law enforcement methods and procedures. This would significantly prejudice its effectiveness as a law enforcement method.
5. The Department referred to previous IC review decisions in support of the exemption claim.[8]
6. The applicant submitted the government should be held accountable for its treatment of citizens while travelling. From submissions provided during this IC review I understand the applicant does not agree that disclosure would prejudice the Department's methods.
7. I have examined unedited versions of the documents. In relation to the first factor, I am satisfied that disclosure of the material would disclose the Department's methods and procedures. As the Department noted in its open submissions, the documents set out specific methods used by the Department to protect Australia's borders.
8. In relation to the second factor, I am satisfied that disclosure of this material would prejudice the effectiveness of the Department's processes because this information could be used to evade the procedures in place to protect Australia's borders. It is apparent to me from my review of the material that the law enforcement methods in the document are not well known to the public at large and are covert rather than routine methods. I accept disclosure of the methods would enable individuals to modify their behaviour when travelling to and from Australia to evade detection by the ABF or other law enforcement agencies.
9. In reaching this conclusion I have also considered the content and nature of the particular material at issue, as well as several recent IC review decisions, which found similar material to be exempt under s 37(2)(b) for similar reasons.[9]

1. I am satisfied that the relevant material is exempt under s 37(2)(b) because:
   • disclosure would or could reasonably be expected to disclose lawful methods or procedures for preventing or detecting breaches or evasions of the law, and
   • disclosure would, or would reasonably be likely to, prejudice the effectiveness of those methods or procedures.[10]

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(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,[11] 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.[12]

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.

[1] The applicant made their FOI request on 19 April 2021. The Department's 'purported' decision of 12 July 2021 (and its subsequent purported internal review decision of 16 September 2021) was made outside the statutory timeframe for the applicant's request and has therefore been taken as submissions in this IC review.

[2] The Department also maintains the same material is conditionally exempt under s 47E(d).

[5] Section 37(2)(b) as set out in Annexure A.

[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).

[8] The Department referred to 'XR' and Department of Home Affairs (Freedom of information) [2021] AICmr ; Edelsten and Australian Federal Police [1985] AATA 350, 'ADQ' and Department of Home Affairs (Freedom of information) [2023] AICmr 49 (23 June 2023).

[9] 'ATC' and Department of Home Affairs (Freedom of information) [2025] AICmr 8 (10 January 2025); 'AMZ' and Department of Home Affairs (Freedom of information) [2024] AICmr 185 (30 August 2024); 'XR' and Department of Home Affairs (Freedom of information) [2021] AICmr 38 (17 August 2021).

[10] Given I have found the material exempt under s 37(2)(b) it is unnecessary for me to consider if the same material is conditionally exempt under s 47E(d).

[11] 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.

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