'AWZ' and Australian Broadcasting Corporation (Freedom of information) [2025] AICmr 114 | Case summary

For the reasons set out above, I am satisfied that documents 1, 1A and 1B are exempt in full under s 45 of the FOI Act.

Documents disclosing trade secrets or commercially valuable information (s 47)

The ABC applied the exemption in s 47(1)(b) to eight documents.[14] As I have found documents 1, 1A and 1B to be exempt in full under s 45, it is unnecessary for me to consider whether the exemption in s 47(1)(b) also applies to these documents. I will therefore discuss s 47(1)(b) only in relation to the remaining documents.[15]
A document will be exempt under s 47(1)(b) of the FOI Act if its disclosure would reveal information that has commercial value that would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.
The ABC contends that the documents comprise details about valuations of the ABC's property and negotiations with third parties about the sale of the property. The ABC claims that this information is inherently commercially valuable, as it pertains to the valuation report. The ABC also contends that disclosure of the information would compromise the ABC's ability to strategically use the information in future negotiations and result in potential buyers using the information to undermine its bargaining position by adjusting the offer price for the Ripponlea site.
The ABC further contends that:
- the information is only known to it and has been kept confidential
- the information is relevant to its commercial decisions
- the information would be valuable to a genuine arm's length buyer
- the information is still current, and
- disclosure may have an impact on commercial negotiations in relation to the sale of the property.
In response to the ABC's contentions, the applicant referred to news articles referring to the estimated value of the ABC's Ripponlea property and submits that it is unclear why the information pertaining to the valuation of the site would be commercially valuable or sensitive.
During this IC review, the ABC sought to rely on confidential submissions. The OAIC did not accept the confidential submissions as the ABC failed to adequately explain why they were necessary. The ABC also failed to provide a version of its confidential submissions which may be shared with the applicant. On this basis, the OAIC considered that if the ABC's submissions were accepted, it would not afford the applicant procedural fairness. For these reasons, I have not considered the confidential submissions.

I have considered the documents together with the parties' submissions and I am not persuaded that the relevant material is commercially valuable. While I accept that the ABC had commissioned the valuation report, I do not consider that this fact alone establishes that the information is commercially valuable.[16] Rather, the documents themselves must be examined together with their context to determine whether they possess any commercial value.
Although the ABC claims that disclosure of the relevant material would undermine its bargaining position and have an impact on its negotiations, it is apparent that the sale of the Ripponlea site has since been completed and publicised. Given the passage of time, I consider that the relevant material is no longer current. It is unlikely that a genuine arm's length buyer would be prepared to pay to obtain this information. Further, there is no evidence to suggest that disclosure of the relevant material would reduce the value of the ABC's business operations or commercial activities.
For these reasons, there appears to be little justification for the ABC in maintaining their position that the relevant material is commercially valuable.

Based on the evidence before me, I am not satisfied that the relevant material is exempt under s 47(1)(b) of the FOI Act.

Financial or property interests of the Commonwealth exemption (s 47D)

The ABC found three documents[17] to be conditionally exempt under s 47D of the FOI Act.
Section 47D provides:

A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth, of Norfolk Island or of an agency.

The financial or property interests of the Commonwealth or an agency may relate to assets, expenditure or revenue-generating activities. An agency's property interests may be broader than merely buildings and land and will include intellectual property or the Crown's interest in natural resources.[18]

The ABC explained that documents 17-19 contain negotiations about the sale of the Ripponlea site, and disclosure of this information would place it at a disadvantage in future negotiations. The ABC further claims that disclosure of the information contained in the document would significantly curtail the willingness of interested parties to engage in negotiations with the ABC.
I have considered the parties' submissions together with the documents, and I accept that the information in documents 17-19 pertain to the sale of the Ripponlea site, which constitutes a 'property interest' for the purposes of s 47D. However, I am not satisfied that disclosure of the information would have a substantial adverse effect on the ABC's financial or property interests. Relevantly, the FOI Guidelines explain that agencies cannot merely assert that its financial or property interests would be adversely affected by disclosure, and that any claim must be supported by evidence.[19]
As I have discussed above, the sale of the Ripponlea site has already been finalised. It is therefore unclear why disclosure of information pertaining to negotiations that have already been completed would discourage other parties from engaging in negotiations, or how it would place the ABC at a disadvantage. Further, other than a general assertion, the ABC has not provided any evidence to establish that disclosure would have the effect that it claims.
I am not satisfied that disclosure of documents 17-19 would have a substantial adverse effect on the financial or property interests of the ABC or the Commonwealth.

Documents 17-19 are not conditionally exempt under s 47D of the FOI Act.

The ABC found six documents[20] to be conditionally exempt under s 47C.
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 recommendations 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.
Deputy President Forgie explained in Wood; Secretary, Department of Prime Minister and Cabinet (Freedom of information) [2015] AATA 945 (Wood)[21] that the words 'opinion', 'advice', and recommendations' in s 47C(1) of the FOI Act all involve consideration, followed by the formation of a view either about a certain subject or a course of action, and the subsequent transmission of that view. Similarly, the words 'consultation' and 'deliberation' both involve the notion of consideration but may not necessarily lead to the formation of an opinion, advice, or recommendation.
The ABC explained that documents 2-7 comprise the minutes and associated papers from meetings of the ABC's Audit and Risk Committee (ARC) and the ABC's Board.
Based on my consideration of the documents, I accept the ABC's characterisation of the relevant documents. It is apparent that the documents comprise the deliberations and recommendations of the ARC and the Board with respect to the Ripponlea site. Although some of the information in the documents may be factual material, I am satisfied that this material forms an integral part of the deliberative matter, such that s 47C(2)(b) of the FOI Act does not apply.

I find that documents 2-7 are conditionally exempt under s 47C of the FOI Act.

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

Having found documents 2-7 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.[22]
The ABC contends that the information contained in documents 2-7 is sensitive in nature, as it relates to the ABC's management of risks, as well as its commercial and financial matters. The ABC acknowledged that there is a public interest in the disclosure of information about its financial position, given it is a publicly-funded organisation. However, the ABC contends that such information has already been provided through public documents such as its annual report. Given the information contained in the documents only relates to property transactions, the ABC contends that disclosure would not provide any useful information about its financial position.
The ABC further explained that disclosure could result in prejudice to the commercial negotiations on the sale of the Ripponlea site and discourage the free exchange of opinions between the ARC and Board members in the future.
In response to the ABC's contentions, the applicant submits that the Ripponlea site is essentially owned by the Australian public and disclosure of information about deliberations by the ABC's Board in relation to transactions concerning property of this nature could not be contrary to the public interest.
The information in documents 2-7 comprise deliberations and recommendations of the ARC and the Board with respect to the Ripponlea site, and includes discussions with respect to the factors and considerations that support the recommendations made by the ARC and the Board. Disclosure of this information would assist the public in understanding the relevant factors and considerations that informed the decision to dispose of the Ripponlea site.
I am satisfied that disclosure of the information could reasonably be expected to promote the objects of the FOI Act, inform debate on a matter of public importance, and promote effective oversight of public expenditure.
Although the ABC contends that disclosure of the information in documents 2-7 would prejudice its commercial negotiations on the sale of the Ripponlea site, I am satisfied that the sale of the site has already been finalised and further negotiations are no longer ongoing. On this basis, I do not consider that this is a relevant factor against disclosure in this case.
With respect to the ABC's claim that disclosure would discourage the free exchange of opinions between the ARC and Board members in the future, the FOI Guidelines explain that although frankness and candour claims may be relevant, agencies would generally have to demonstrate that the circumstances are special and specific in order for such a claim to be successful.[23]
Although the ABC has raised concerns about the inhibition of frankness and candour, other than a general assertion, the ABC has not provided any evidence in support of its claim. Further, having regard to the content of documents 2-7, I am not persuaded that the matters raised in the documents are sufficiently special or specific to warrant significant weight being given to the ABC's frankness and candour claims.
Balancing the factors for and against disclosure, I am satisfied that the public interest factors in favour of disclosure outweigh the factors against disclosure in this case.

I find that disclosure of the information contained in documents 2-7 would not be contrary to the public interest at this time.

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 decides that giving access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access (s22(1)(a)(ii)), 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.[24]

Material obtained in confidence exemption (s 45)

Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.

The exemption in s 45(1) does not apply to a document that is conditionally exempt under s 47C(1) (deliberative matter), or would be conditionally exempt but for s 47C(2) or 47C(3), and that is prepared by a minister, ministerial staff or agency officers unless the obligation of confidence is owed to persons other than the minister, ministerial staff or agency officers. For more information about the s 47C conditional exemption see Part 6 of these Guidelines.

The exemption operates as a separate and independent protection for confidential relationships which may, but need not necessarily, also fall within the scope of other specific exemptions, for example, ss 47F (personal privacy) and 47G (business documents).

A breach of confidence is the failure of a recipient to keep confidential, information which has been communicated in circumstances giving rise to an obligation of confidence. The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.

The exemption in s 45 is restricted in scope to the disclosure of information that would found an action for breach of confidence. It does not apply to confidential information per se, or to the disclosure of confidential information that would found another type of action such as an action based on the tort of negligence or a breach of statutory duty.

While the existence of either a statutory or contractual obligation of confidence may support the existence of an equitable obligation of confidence for the purpose of s 45, it is not of itself determinative. All five criteria must also apply to the information. The existence of either a statutory or a contractual obligation of confidentiality should be considered in the context of those 5 criteria.

To found an action for breach of confidence (which means s 45 may be applied by an agency or minister), the following five criteria must be satisfied in relation to the information:

it must be specifically identified
it must have the necessary quality of confidentiality
it must have been communicated and received on the basis of a mutual understanding of confidence
it must have been disclosed, or threatened to be disclosed, without authority
unauthorised disclosure of the information has or will cause detriment.

A breach of confidence will not arise, and the exemption will not apply, if the information to be disclosed is an 'iniquity' in the sense of a crime, civil wrong, or serious misdeed of public importance which ought to be disclosed to a third party with a real and direct interest in redressing such crime, wrong, or misdeed.

The alleged confidential information must be identified specifically. It is not sufficient for the information to be identified in global terms. For example, where a document contains information that is claimed to be confidential, that information must be specifically identified either in terms of the subject matter or the type of information, or the relevant sentences or paragraphs in which that information appears. Alternatively, if all of the document is claimed to be confidential, identification will be in terms of clearly identifying the relevant document.

For the information to have the quality of confidentiality it must be secret or only known to a limited group. Information that is common knowledge or in the public domain will not have the quality of confidentiality. For example, information that is provided to an agency and copied to other organisations on a non-confidential or open basis may not be considered confidential.

The quality of confidentiality may be lost over time if confidentiality is waived or the information enters the public domain. This can occur if the person whose confidential information it is discloses it. However, even if information has entered the public domain it may not have lost its confidential character unless it has become public knowledge such that, as a matter of common sense, the confidential character of the information has disappeared. The obligation of confidence may also only relate to a limited time period.

The information must have been communicated and received on the basis of a mutual understanding of confidence. In other words, the agency or minister needs to have understood and accepted an obligation of confidence. The mutual understanding must have existed at the time of the communication. For example, when a person gives information to an agency or a minister they may ask that it be kept confidential and if the agency or minister accepts the information on that basis the requirement for a mutual understanding of confidence will be met. However, if the agency or minister declines to accept the information on that basis (and communicates this to the person) the understanding of confidence will not be mutual.

A mutual understanding of confidence can exist even if a person is legally obliged to provide the information to the agency. On the other hand, if an agency or minister has a statutory obligation to publish or release specified information, that obligation will outweigh any undertaking by the agency or minister to treat the information confidentially, and therefore is inconsistent with any mutual understanding of confidence.

Whether the agency or minister accepted an obligation of confidence and is maintaining that obligation may be clear from an agency's or minister's actions. For example, an agency or minister may mark a document as confidential, keep it separate from documents that are not confidential and ensure that the material is not disclosed to third parties without consent.

An obligation of confidentiality may be express or implied. An express mutual understanding may occur where the person providing the information asks the agency or minister to keep the information confidential and the agency or minister assures them that they will. Agency practices may illustrate how an implied mutual understanding may arise. For example, if an agency has policies and procedures in place for dealing with commercial-in-confidence information and those policies and procedures are known by the business community, it may be implied that when a business provides such information to that agency it will be on the basis of confidentiality.

Unauthorised disclosure or threatened disclosure

The information must have been disclosed or been threatened to be disclosed without authority. The scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised.

For example, the agency or minister may have told the person providing the information about the people to whom the information will usually be disclosed. The law may require disclosure to third parties in the performance of an agency's functions, which will amount to an authorised use or disclosure. Similarly, a person providing confidential information to an agency or minister may specifically permit the agency or minister to divulge the information to a limited group of people.

Compliance with a statutory requirement for disclosure of confidential information will not amount to an unauthorised use and will not breach confidentiality.

The fifth element for a breach of confidence action is that unauthorised disclosure of the information has, or will, cause detriment to the person who provided the confidential information. Detriment takes many forms, such as threat to health or safety, financial loss, embarrassment, exposure to ridicule or public criticism. The element of detriment applies only to private persons and entities, not government.

The Administrative Appeals Tribunal applied this element in numerous cases, but whether it must be established is uncertain. The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused. Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.[25]

Commercially valuable information (s 47(1)(b))

(1) A document is an exempt document if its disclosure under this Act would disclose:

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.

It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved. The information need not necessarily have 'exchange value', in the sense that it can be sold as a trade secret or intellectual property. The following factors may assist in deciding whether information has commercial value:

whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
whether the information confers a competitive advantage on the agency or person to whom it relates - for example, if it lowers the cost of production or allows access to markets not available to competitors
whether a genuine 'arm's-length' buyer would be prepared to pay to obtain that information
whether the information is still current or out of date (out of date information may no longer have any value)
whether disclosing the information would reduce the value of a business operation or commercial activity - reflected, perhaps, in a lower share price.[26]

The second requirement of s 47(1)(b) - that it could reasonably be expected that disclosure of the information would destroy or diminish its value - must be established separately by satisfactory evidence. It should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known. Nor is it sufficient to establish that an agency or person would be adversely affected by disclosure; for example, by encountering criticism or embarrassment. It must be established that the disclosure would destroy or diminish the commercial value of the information.[27]

(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 three 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.[28]

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).[29]

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 ...

(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)).[30]

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 ...[31]

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.[32]

The FOI Guidelines explain that a deliberative process involves the exercise of judgement in developing and making a selection from different options:

The action of deliberating, in common understanding, involves the weighing up or evaluation of competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. > > It is not enough for the purposes of s 47C(1) that an opinion, advice or recommendation is merely obtained, prepared or recorded; it must be obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes involved in the functions of the agency, minister or government. > > The functions of an agency are usually found in the Administrative Arrangements Orders or the instrument or Act that established the agency. For the purposes of the FOI Act, the functions include both policy making and the processes undertaken in administering or implementing a policy. The functions also extend to the development of policies in respect of matters that arise in the course of administering a program. The non-policy decision making processes required when carrying out agency, ministerial or governmental functions, such as code of conduct investigations, may also be deliberative processes. > > ... > > An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process. However, it is not sufficient that an agency or minister merely has a document in its possession that contains information referring to matters for which the agency or minister has responsibility.[33]

In relation to 'purely factual material', the FOI Guidelines explain:

'Purely factual material' does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.

Where a decision maker finds it difficult to separate the purely factual material from the deliberative matter, both the elements may be exempt. If the 2 elements can be separated, the decision maker should consider giving the applicant a copy with deletions under s 22 to provide access to the purely factual material.[34]

Documents affecting financial or property interests of the Commonwealth (s 47D)

Section 47D conditionally exempts documents where disclosure would have a substantial adverse effect on the financial or property interests of the Commonwealth or an agency.[35]

The financial or property interests of the Commonwealth or an agency may relate to assets, expenditure or revenue-generating activities. An agency's property interests may be broader than merely buildings and land, and may include intellectual property or the Crown's interest in natural resources.[36]

With respect to the term 'substantial adverse effect', the FOI Guidelines explain:

The term 'substantial adverse effect' broadly means 'an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person'. The word 'substantial', in the context of substantial loss or damage, has been interpreted as including 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.

A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons under s 26 to show their deliberations in determining the extent of the expected effect. It may sometimes be necessary to use general terms to avoid making the statement of reasons itself an 'exempt document' (s 26(2)).[37]

For the conditional exemption to apply, the potential effect that would be expected to occur following disclosure must be both substantial[69] and adverse.[38]

A substantial adverse effect may be indirect. For example, where disclosure of documents would provide the criteria by which an agency is to assess tenders, the agency's financial interest in seeking to obtain the best value for money through a competitive tendering process may be compromised.[39]

An agency or government cannot merely assert that its financial or property interests would be adversely affected following disclosure.[40] The particulars of the predicted effect should be identified during the decision-making process and should be supported by evidence. 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 of these Guidelines). The effect must bear on the actual financial or property interests of the Commonwealth or an agency.[41]

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.[42]

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.[43]

With respect to the inhibition of frankness and candour, the FOI Guidelines relevantly provides:

The ability of public servants to provide robust and frank advice (often referred to as frank and fearless advice) is still often identified as a public interest factor against access by decision makers. Decision maker should exercise caution if this is the only public interest factor identified as being against access. The Australian Information Commissioner said in 'GI' and Department of the Prime Minister and Cabinet:

... a more recent decision of the Administrative Appeals Tribunal, Rovere and Secretary, Department of Education and Training [2015] AATA 462 has held that 'A frankness and candour claim, made in circumstances where there is no (other) factor against access ... cannot be a factor against access when applying the public interest test' (at 52). I read that as a comment only that a confidentiality or candour claim carries no weight by itself but must be related to some particular practice, process, policy or program in government.

In Rovere and Secretary, Department of Education and Training the AAT said that in relation to pre-decisional communications, a frankness and candour claim cannot be a public interest factor against access. The Information Commissioner reads Rovere as authority for the proposition that a confidentiality or candour claim carries no weight by itself but must be related to some particular practice, process, policy or program in government.

The Information Commissioner considers that frankness and candour in relation to s 47C may have some application as one public interest factor against disclosure in combination with other factors. However frankness and candour may be the sole factor 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.

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.

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.

The AAT has said there is an 'essential balance that must be struck between making information held by government available to the public so that there can be increased public participation leading to better informed decision-making and increased scrutiny and review of the government's activities and ensuring that government may function effectively and efficiently'.

While 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.[44]

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 ABC clarified the scope of the request with the applicant who confirmed that they were seeking documents created or considered after 1 January 2017.

[5] Sections 11A, 45, 47 (1)(b), 47C and 47D 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] See, FOI Guidelines at [5.183] - [5.202]; Ben Butler and the Australian Securities and Investments Commission (No. 2) (Freedom of information) [2023] AICmr 56; ACP and Department of Home Affairs (Freedom of information) [2022] AICmr 76; Paul Farrell and Department of Home Affairs (Freedom of information) (No. 4) [2019] AICmr 40; Paul Farrell and Department of Home Affairs (No 2) (Freedom of information) [2019] AICmr 37; Paul Farrell and Department of Home Affairs (No 4) (Freedom of information) [2018] AICmr 68; and Friends of the Earth Australia and Food Standards Australia New Zealand (Freedom of information) [2018] AICmr 44.

[9] Coco v AN Clark (Engineers) Ltd [1969] 86 RPC 41.

[12] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at [12]. See also FOI Guidelines [5.162].

[14] Documents 1, 1A, 1B, 2, 3, 17, 18 and 19.

[21] Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of information) [2015] AATA 945.

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

[25] FOI Guidelines at [5.183] to [5.202] [footnotes omitted].

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

[33] FOI Guidelines at [6.54] - [6.58] (footnotes omitted).

[34] FOI Guidelines at [6.70] - [6.71] (footnotes omitted).

[35] For an example of the application of this exemption see Briggs and the Department of the Treasury (No. 3) [2012] AICmr 22.

[36] FOI Guidelines [6.80]. See Re Connolly and Department of Finance [1994] AATA 167 in which the Commonwealth property was the uranium stockpile.

[37] FOI Guidelines at [6.18] - [6.19] (footnotes omitted).

[39] FOI Guidelines [6.82]. See Secretary, Department of Employment, Workplace Relations and Small Business v Staff Development & Training Centre Pty Ltd [2001] FCA 1375 ; (2001) 114 FCR 301.

[40] See Community and Public Sector Union and Attorney-General's Department (Freedom of information) [2019] AICmr 75 [57]-[61] in which the Information Commissioner found that the respondent had not provided particulars to explain why disclosure of the particular material it decided was exempt under s 47D would adversely impact the ability of the government to manage its financial matters. See also 'DB' and Australian Federal Police [2014] AICmr 105 [37]-[40] in which the acting Freedom of Information Commissioner found that the respondent had made broad assertions about the need to exempt documents containing financial and budgetary information from disclosure but had not addressed the actual contents of each document. The respondent also did not substantiate its claim that disclosure would have a 'substantial adverse impact' on its financial or property interests.

[41] FOI Guidelines [6.83]. See Re Hart and Deputy Commissioner of Taxation [2002] AATA 1190 ; (2002) 36 AAR 279.

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

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

[44] FOI Guidelines at [6.246]-[6.252] (footnotes omitted).

Information Act 1982

Review Tribunal Act 2024

Review Tribunal Rules 2024

The FOI Guidelines relevantly explain that information possesses the necessary quality of confidentiality if it is secret or only known to a limited group. Information that is common knowledge or in the public domain would not have the necessary quality of confidentiality.[12] In Coco v A N Clark (Engineers) Ltd [1969] RPC 41, Megarry J found that no matter how secret the information is, there can be no binding obligation of confidence if the information is disclosed in public or communicated in other circumstances which negate any duty to keep the information confidential.[13]
The ABC explained that the information in documents 1, 1A and 1B is only known to a limited group and is not common knowledge or in the public domain. It further explained that it had treated this information as confidential.
Although the applicant submits that various news articles have discussed the estimated value of the ABC's Ripponlea site, based on my consideration of documents 1, 1A and 1B, they provide substantially more detail and are of a different character to the information that is publicly available. I am satisfied that the information has not been disclosed more broadly.
Accordingly, I accept that the information contained in documents 1, 1A and 1B possesses the necessary quality of confidentiality.

'AWZ' and Australian Broadcasting Corporation (Freedom of information) [2025] AICmr 114 (19 June 2025)

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Judgment (128 paragraphs)

Legislation Cited (3)

Cases Cited (2)