Besser; Secretary, Department of Employment and (Freedom of information) [2017] AATA 835 (9 June 2017)

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FREEDOM OF INFORMATION - request for access to documents relating to investigations of providers funded under employment services program - documents contain material identifying employment services providers - whether disclosure would unreasonably affect employment services providers adversely in respect of their lawful business, commercial or financial affairs - whether access would, on balance, be contrary to the public interest - decision under review varied.

Administrative Appeals Tribunal Act 1975, ss 30(1A), 35(3),

Freedom of Information Act 1982, ss 3, 3A, 4(1), 11A(5), 11B(3), 15, 22, 27, 31B, 47G, 54L, 61(1)(a), 64(1A), 93A

Bell and Secretary, Department of Health [2015] AATA 494

Besser and Department of Employment [2015] AICmr 67

Besser and Department of Families, Housing, Community Services and Indigenous Affairs [2013] AICmr 65

Dreyfus and Secretary, Attorney General's Department [2015] AATA 962

Francis and Department of Defence [2012] AATA 838; (2012) 59 AAR 35

Leigh and Australian Federal Police (2016) 153 ALD 546

Prinn and Department of Defence (2016) 152 ALD 162

Rovere and Secretary, Department of Education and Training [2015] AATA 462

Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945

Smith and Australian Federal Police [2016] AATA 531

Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (December 2016)

1. The respondent applied to the Department of Employment (the Department),[1] under the Freedom of Information Act 1982 (the FOI Act), for access to documents relating to the Department's administration of an employment services program. The documents in issue in this review relate to investigations by the Department of various employment services providers funded under that program. The Department, and most of those providers, say that the documents are exempt under s 47G of the FOI Act to the extent that they identify those providers.
2. Disclosure of the documents in issue would name providers as having been the subject of unsubstantiated allegations to, or investigations by, the Department. That disclosure could reasonably be expected to have an adverse effect on providers, in respect of their lawful business, commercial or financial affairs. That adverse effect would be unreasonable for the purposes of s 47G. Access to the documents at this time would, on balance, be contrary to the public interest for the purposes of s 11A(5). Accordingly, copies of the documents should be provided to the respondent, modified (under s 22) by the deletion of the information that identifies employment services providers.

1. On 27 December 2011, Mr Linton Besser, a journalist, applied to the Department under s 15 of the FOI Act for access to:

All reports or memos etc to the Minister and/or the Secretary or other senior executives of [the Department] which discuss the issue of abuse, rorting, false claiming for fees etc, by whatever description such problems are given in the documents, by employment services providers operating under the Job Services Australia initiative, compiled and/or delivered in the past 12 months.

On 17 January 2012, Mr Besser applied to the Department for access to documents relating to audits of a specified organisation. That request, and the documents to which it relates, are not in dispute in this review. On 4 June 2012, Mr Besser applied to the Department for access to:

All Provider Risk Alert Reports compiled by [the Department] with respect to Employment Services Providers for the period from 1 January 2011 to 1 January 2012.

On 22 June 2012, Mr Besser narrowed the scope of that request.

1. In these reasons, I will adopt the shorthand of referring to a document that is wholly comprised of exempt matter[2] as wholly exempt; and to a document that contains, but is not wholly comprised of, exempt matter as partly exempt. Strictly speaking, under s 31B of the FOI Act, the whole document is exempt if one of the exemptions in Division 2 of Part IV applies; or if one of the conditional exemptions in Division 3 of Part IV applies and access to the document would, on balance, be contrary to the public interest.[3] However, s 22 provides for an FOI applicant to be given access to an edited copy of a partly exempt document, modified by the deletion of the exempt matter.
2. On 13 April 2012, the Department advised Mr Besser that it had identified 45 documents falling within the scope of his December 2011 request. The Department decided that nine of those documents were wholly exempt, and 36 were partly exempt. In doing so, the Department applied the exemptions in s 37 (law enforcement), s 42 (legal professional privilege), s 47C (deliberative processes), s 47D (financial or property interests of the Commonwealth), s 47F (personal privacy) and s 47G of the FOI Act (business information). On 4 June 2012, Mr Besser applied to the Information Commissioner under s 54L of the FOI Act for IC review of the Department's decision. An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under Part VII of the FOI Act.[4]
3. On 14 September 2012, the Department advised Mr Besser that it had identified 12 documents falling within the scope of his June 2012 request. The Department decided that 11 of those documents were partly exempt. On 19 October 2012, the Department advised Mr Besser that it had made an error in processing his request. At the Department's suggestion, Mr Besser requested an internal review of the Department's decision. On the same day, Mr Besser also applied to the Information Commissioner under s 54L of the FOI Act for IC review of the Department's decision. On 19 November 2012, following an internal review of its decision, the Department advised Mr Besser that it had identified a further 18 pages falling within the scope of his June 2012 request (though there were still 12 documents). The Department decided that all 12 of those documents were partly exempt. In doing so, the Department applied the exemptions in s 37 (law enforcement), s 42 (legal professional privilege) and s 47G of the FOI Act (business information).
4. The Acting Information Commissioner reviewed together the Department's decisions on Mr Besser's requests of December 2011, January 2012[5] and June 2012. In the course of the IC review, Mr Besser further narrowed the scope of his requests. The Department maintained that the documents were variously exempt because of s 37 (law enforcement), s 47C (deliberative processes), s 47D (financial or property interests of the Commonwealth), s 47F (personal privacy) and s 47G of the FOI Act (business information).
5. On 15 October 2015, the Commissioner set aside all three of the Department's decisions, and substituted his own decision under s 55K of the FOI Act.[6]
6. On 11 November 2015, the Department applied to the Tribunal, under s 57A(1)(a) of the FOI Act, for review of that decision. The Department only seeks review of part of the Commissioner's decision: it says that the Commissioner was wrong to decide to disclose the names of - and other identifying information about - 22 employment services providers. Of the documents in dispute in the IC review, 19 documents (the documents) contain those names or that identifying information. The Department says that the documents are partly exempt because of s 47G of the FOI Act, and should only be made available to Mr Besser with those names (and that information) redacted.

1. The decision under review is the Acting Information Commissioner's decision on 15 October 2015, setting aside the Department's decision and substituting his own decision.

1. The issue in this review is whether the identities of the 22 employment services providers should be disclosed. That depends on:
   • whether the documents are conditionally exempt under the business information exemption (s 47G of the FOI Act); and
   • if they are conditionally exempt, whether access to the documents would, on balance, be contrary to the public interest (s 11A(5)).
2. Because of s 61(1)(a) of the FOI Act, the Department has the onus of establishing that the reviewable decision was not justified, or that I should give a decision adverse to Mr Besser.

1. When an FOI request is made for access to a document containing business information (that is, information about the business, commercial or financial affairs of an organisation),[7] the FOI Act requires the relevant agency to consult with the organisation if it appears that the organisation might reasonably wish to make an exemption contention (s 27(1)(b)). The Department did not consult any of the employment services providers before it made its decisions on Mr Besser's various requests.[8] However, during the IC review, the Department contacted the 22 providers whose identities, it says, should not be disclosed.[9] The Department also contacted those providers after it had applied to the Tribunal for review. 20 of those providers objected to the disclosure of their information; two did not respond. I have before me copies of the Department's correspondence with those providers.
2. Three of the employment services providers that object to the disclosure of their information sought to be joined as parties to this review. On 15 December 2015, I ordered that each be joined as a party under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). I also ordered, under s 35(3) of the AAT Act, that the names of those parties not be disclosed. Each is identified in this review by a pseudonym: "JFHP", "BGKG" and "HXBV".
3. Of those three providers, only JFHP made submissions in this review. JFHP was also represented at the hearing. The Department also made submissions, and was represented at the hearing. At the Department's request, I allowed the Department to make some of its submissions in private, and in the absence of JFHP's representatives. Mr Besser made no submissions, and was not represented at the hearing.

1. Job Services Australia was an employment services program (the program), administered by the Department. The 22 employment services providers who are identified in the documents were funded - and, in some cases, are still funded - to provide services under the program or its successor program.[10] JFHP (a provider) described its interaction with the program as follows:

Employment services are designed to assist unemployed people in receipt of government benefits to secure jobs. The [Department] funds JFHP to provide these services on a fee-for-service and outcome basis. This funding is provided pursuant to a formal contract between the [Department] and JFHP. The unemployed persons use the service for free and employers also use the service to locate suitable staff and fill positions for free.

The Department funds many other employment services providers (including the providers identified in the documents) and those providers compete with each other to provide services, and (from time to time) to contract with the Department to provide further services.

1. The Department voluntarily produced to the Tribunal an unedited copy of the documents.[11] I have examined them. The 19 documents contain details about the 20 employment services providers that object to disclosure of their identities, and the two providers that have not indicated whether they object to disclosure. Those details are the names of the providers, and other information (such as locations) which would identify a provider. The documents comprise 12 "provider risk alerts"; four reports of external fraud investigations; and three other documents relating to the provision of employment services under the program.
2. The Department says, and I accept, that its provider risk alerts are:

... an internal tool used by the Department to monitor emerging risks and progress against resolving potentially significant contract management issues and is an integral part of the Department's risk management framework for employment services.

The Department also says, and I accept, that its external fraud investigations reports are:

... used for similar purposes but are limited to potential fraud. They contain information concerning providers who are under investigation for possible breaches of compliance with contractual arrangements and/or under investigation for possible breaches of the criminal law.

1. The Department says that the provider risk alerts and the external fraud investigations reports are:

... triggered in a number of ways, including through internal monitoring by the Department, tip offs from current or previous staff members of a provider (generally made anonymously) and complaints made by job seekers (including those still being assisted by a provider). In some cases, the reports also detail information and issues identified through an employment service provider's own internal quality assurance or audit check.

Critically, many of the reports contain unsubstantiated allegations. They are a "point in time" document, and report on the current status of the investigation at the time of the report, not the final outcomes of the investigations. These are reported on as they eventuate, including where the provider was found not to be at any fault. ... [I]n many cases, the allegations were dismissed as unsubstantiated.

Having examined the documents, I accept this characterisation of the documents by the Department. I note that there are some references in the documents to a successful criminal prosecution arising from allegations made to the Department. But, the name of the convicted person has not been removed from the redacted copy of the documents provided to Mr Besser. There are also references in the documents to various allegations being referred to the Commonwealth Director of Public Prosecutions, and of charges having been laid against various people. But, none of the documents substantiates any of those allegations of wrongdoing.

Are the documents conditionally exempt under the business information exemption (s 47G)?

1. Section 47G of the FOI Act relevantly provides:

47G Public interest conditional exemptions - business

(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; ...

1. There is no doubt that disclosing the documents would disclose information concerning the business, commercial or financial affairs of the 22 employment services providers. The question is this: would (or could) that disclosure unreasonably affect those providers adversely in respect of their lawful business, commercial or financial affairs?
2. In the decision under review, the Commissioner summarised that part of his decision that dealt principally with s 47G as follows:

This decision rejects the contention that publicly releasing documents identifying organisations investigated by the Department in response to allegations of fraud would unreasonably affect those organisations.[12]

In doing so, the Commissioner cited a decision of the Tribunal: Bell and Secretary, Department of Health. In Bell, the Tribunal considered whether s 47G applied to departmental correspondence with a company about a review of that company's management and administration of a government health program.[13] The Tribunal noted that the public interest in disclosure arises when deciding whether a document is conditionally exempt under s 47G, and not just when - having decided that the document is conditionally exempt - applying s 11A.[14] This is because deciding that disclosure would (or could reasonably be expected to) have an unreasonable adverse effect involves considering whether that effect would be reasonable "given whatever might be the public interest in disclosure".[15] The Tribunal applied that approach in Bell:

When I have regard to the information that is contained in [two of the relevant documents], the historic nature of that information in the history of [the company] its relations with the Department, ... the public interest in knowing whether public money was accounted for at the appropriate time in the manner required and the public interest in ensuring that public programmes are properly administered, I conclude that any adverse effect that would, or that might reasonably be expected, to follow disclosure of the documents would not be an unreasonable adverse effect on [the company] or on the ongoing management and administration of [the health program]. Therefore, I am not satisfied that [the documents] are conditionally exempt under s 47G.[16]

1. In the decision under review, the Commissioner said:

I note the Department refers to the case of Besser and Department of Families, Housing, Community Services and Indigenous Affairs[17] where the former Freedom of Information Commissioner found that disclosing the details of organisations investigated for fraud would be unreasonable for the purposes of s 47G. However, the documents in that case did not detail the investigations and it was unclear whether the potential breaches of the law extended beyond an individual employee.[18] In the present case, the investigations spanned 37 service providers and, according to Mr Besser, the Government recovered more than $41,000,000.00 it had paid in false claims. It is apparent that the documents in this case do detail the investigations undertaken and impropriety beyond that of an individual employee.[19]

I made the IC review decision in Besser and Department of Families, Housing, Community Services and Indigenous Affairs. The Commissioner was correct to note that the documents in that case indicated only that two of the organisations were under investigation and did not indicate the extent, if any, of the involvement of a third organisation.[20] But, importantly, in that case it was also not clear whether the allegations had been substantiated, or whether the third organisation was even alleged to have been involved in any criminal activity.[21]

1. The same is true in this review. The documents contain information about allegations made against employment services providers, and the Department's investigation of those allegations. But none of the documents substantiates any allegations of wrongdoing.[22]
2. As the Tribunal explained in Bell, there is a "public interest in knowing whether public money was accounted for at the appropriate time in the manner required and ... in ensuring that public programmes are properly administered".[23] And the adverse effect, upon an organisation, of disclosure might not be unreasonable in circumstances where that public interest is met. But, in this review (and to the extent that the documents detail the Department's investigation of the 22 providers), disclosure of the documents with the providers' names and other identifying information redacted meets the public interest in knowing whether the Department properly accounted for public money, and whether the program was properly administered. The disclosure of the documents, with the providers identified, would not meet that public interest to any greater extent than would the disclosure of the documents in redacted form. Of course, that does not mean that disclosure which identifies the providers would necessarily unreasonably adversely affect those providers, for the purposes of s 47G. It just means that the public interest is met whether or not the providers are identified.
3. However, in my view, disclosure of the providers' identities would, or could reasonably be expected to, unreasonably affect those providers in respect of their lawful business, commercial or financial affairs. The documents contain information about the providers in the context of the Department's risk management, and investigation of possible contractual or criminal breaches. But the documents do not substantiate any of the allegations made against the providers, or reach any conclusions about any of the possible breaches.[24]
4. In Leigh and Australian Federal Police,[25] I considered the circumstances in which the disclosure of personal information in a police report might be unreasonable for the purposes of s 47F of the FOI Act. I noted that a person would suffer a certain level of opprobrium if named as having been interviewed by the police in the course of a criminal investigation.[26] The same is true in this review: a provider would suffer a certain level of opprobrium if named as having been the subject of allegations to, or investigations by, the Department. In Leigh, I decided that disclosure would not involve the unreasonable disclosure of personal information because, if the redacted police report were considered as a whole, the information it contained about the relevant people was not prejudicial; it did not carry an implication that those people had come under unfavourable police attention.[27] That is not the case in this review. On the contrary, the documents carry the implication that the named providers had come under unfavourable attention by the Department, in circumstances where the alleged misconduct has not been substantiated - at least not on the face of the documents.[28]
5. A hypothetical neutral reader of the documents might not ascribe any weight to those unsubstantiated allegations. But I think that disclosure of the documents could reasonably be expected to have an adverse effect on providers by naming them as having been the subject of allegations to, or investigations by, the Department. That effect would be a reduction in the number of employers or unemployed people seeking to use a provider's services, and a consequential reduction in the provider's access to funding under the program. The documents do not reveal whether the allegations have been substantiated.[29] In those circumstances, I think that the adverse effect, upon the providers, of disclosure would be unreasonable for the purposes of s 47G.
6. It follows that the documents are conditionally exempt under s 47G.

Would access to the documents be contrary to the public interest (s 11A(5))?

1. The Australian Information Commissioner has issued guidelines (the FOI Guidelines) under s 93A(1) of the FOI Act. Section 93A(2) provides that "regard must be had" to the FOI Guidelines for the purposes of performing a function, or exercising a power, under the FOI Act. The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary.[30]
2. Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be disclosed "unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest".
3. The FOI Guidelines also note that there may be some overlap between the factors relevant to the application of ss 47G and 11A: "[i]t is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again in assessing the public interest balance".[31]

(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:

(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);

(b) inform debate on a matter of public importance;

(c) promote effective oversight of public expenditure;

(d) allow a person to access his or her own personal information.

1. The Department concedes that access to the documents would promote the objects of the FOI Act (s 11B(3)(a)), specifically the promotion of "Australia's representative democracy by contributing towards ... increasing scrutiny, discussion, comment and review of the Government's activities"[32] - in this case, "the Government's approach to and administration of the provision of employment services to job seekers and related public expenditure". But the Department says:

... it is important in the present case that details of the allegations have already been disclosed, and all that has been withheld are the identities of the individual providers. Disclosure of the exempt material will not significantly advance the public interest, as the nature of the allegations and how they were investigated has already been disclosed ...

I agree, and I note that I have taken this factor into consideration in deciding about the application of s 47G. The Department also says:

... as noted in the decision under review there has been widespread public reporting of issues relating to the operation of the employment services market.[33]

1. The FOI Guidelines include a non-exhaustive list of further factors favouring access. Only one of these is relevant to this review: that disclosure would promote effective oversight of public expenditure.[34] I do not think that there are any other factors favouring access in this review.

1. The FOI Act does not specify any factors against giving access to documents. The FOI Guidelines include a non-exhaustive list of such factors. Only one of these is relevant to this review: that disclosure could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.[35]
2. The Department says that the following factors are also factors against giving access to the documents:
   • disclosure will have an adverse impact on the commercial standing and financial viability of employment services providers;
   • disclosure will prejudice the fair treatment of providers, particularly in those cases where the allegations relating to them were found to be unsubstantiated; and
   • disclosure will discourage employment services providers and other contractors to government from volunteering information about potential inadequacies in the work they undertake for fear of unfair adverse publicity.

I agree that the first two of these are factors against giving access to the documents, noting that the second factor is a specific example of the factor identified in the FOI Guidelines, quoted above;[36] and that both factors were part of my consideration of the application of s 47G.[37]

1. I do not think that the third factor identified by the Department is of much weight. As the FOI Guidelines point out, "[t]he pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure".[38] It will very often be the case that a person or organisation voluntarily providing information to government risks unfair adverse publicity in the event that that information is disclosed. It would not be consistent with that pro-disclosure principle for the possibility of such adverse publicity to be a significant factor against access in all such cases. In this review, the providers are contractually obliged to report certain information to the Department. And the providers, and others, would be obliged to report certain other information by operation of the criminal law. I accept that disclosure might dissuade some providers, and others, from volunteering some information. But people volunteering information in such circumstances must be assumed to have understood that that information might properly be disclosed under the FOI Act. I do not think that discouraging the volunteering of information is a significant factor against giving access in this review.

Balancing the factors favouring and against access

1. There is a general public interest in the disclosure of the documents. Access to the documents would increase scrutiny, discussion, comment and review of the Department's administration of the program, and expenditure under the program.
2. But access would have an adverse impact on the commercial standing and financial viability of employment services providers. And access would prejudice the fair treatment of providers, noting that none of the allegations has been substantiated (on the face of the documents),[39] and some of the allegations relating to some of the providers have been found to be unsubstantiated.
3. In the decision under review, the Commissioner decided that access to the documents would not be contrary to the public interest. In doing so, he said:

I agree with Mr Besser that a multi-billion dollar government program is deserving of considerable scrutiny, particularly where there is a substantial risk of fraud and where the proper accountability and governance of external providers is essential to minimising that risk.[40]

I agree that there is a significant public interest in the scrutiny of the Department's administration of the program. But, for the reasons I have given above,[41] the public interest in that scrutiny is met by the disclosure of the documents, whether or not the providers are identified.

1. In balancing these factors - for and against access - I give the greatest weight in this review to the factors against access. I find that access to the documents at this time would, on balance, be contrary to the public interest.

1. The documents are conditionally exempt under s 47G of the FOI Act. Access to the documents at this time would, on balance, be contrary to the public interest. Accordingly, the documents are exempt (s 31B of the FOI Act). The decision under review should be varied.[42]

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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[1] At the time that the respondent made his FOI requests, the Department was known as the Department of Education, Employment and Workplace Relations.

[2] Section 4(1) of the FOI Act provides that "exempt matter means matter the inclusion of which in a document causes the document to be an exempt document".

[3] See also the definitions of "conditionally exempt" and "exempt document" in s 4(1).

[5] As noted at [3] above, the January 2012 decision is not relevant to this review.

[6] Besser and Department of Employment [2015] AICmr 67 at [1].

[8] Presumably this is because the Department had not decided to give access to that business information (see s 27(4)) and - in due course - decided not to give access to that business information.

[9] The Department also contacted other employment services providers, but the identities of those other providers have been disclosed, with their consent, and documents containing details of those providers are not in dispute in this review: see Besser and Department of Employment [2015] AICmr 67 at [43].

[10] The "jobactive" program replaced the Job Services Australia program on 1 July 2015.

[12] Besser and Department of Employment [2015] AICmr 67 at [2].

[13] Bell and Secretary, Department of Health [2015] AATA 494 at [58]-[59] per Forgie DP.

[14] See also Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (December 2016) at [6.187]: "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".

[15] Bell and Secretary, Department of Health [2015] AATA 494 at [27] per Forgie DP.

[16] Bell and Secretary, Department of Health [2015] AATA 494 at [68] per Forgie DP, cited in Besser and Department of Employment [2015] AICmr 67 at [42] per Commissioner Pilgrim. See also FOI Guidelines at [6.189].

[17] [2013] AICmr 65.

[18] Besser and Department of Families, Housing, Community Services and Indigenous Affairs [2013] AICmr 65 at [42].

[19] Besser and Department of Employment [2015] AICmr 67 at [46], one footnote omitted.

[20] Besser and Department of Families, Housing, Community Services and Indigenous Affairs [2013] AICmr 65 at [42].

[21] Besser and Department of Families, Housing, Community Services and Indigenous Affairs [2013] AICmr 65 at [43].

[22] Except, as noted at [19] above, where the documents refer to a successful criminal prosecution, and the convicted person's name remains in the redacted copy of the documents provided to Mr Besser.

[23] Bell and Secretary, Department of Health [2015] AATA 494 at [68] per Forgie DP: see [22] above.

[24] See note 22 above.

[25] (2016) 153 ALD 546.

[26] Leigh and Australian Federal Police (2016) 153 ALD 546 at 560 [48].

[27] Leigh and Australian Federal Police (2016) 153 ALD 546 at 560 [48].

[28] See note 22 above.

[29] See note 22 above.

[30] See Dreyfus and Secretary, Attorney-General's Department [2015] AATA 962 at [33] per Bennett J; Francis and Department of Defence [2012] AATA 838; (2012) 59 AAR 35 at 39-40 [18] per Jarvis DP; Rovere and Secretary, Department of Education and Training [2015] AATA 462 at [12]. But see also Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945 at [23]-[27] and Prinn and Department of Defence (2016) 152 ALD 162 at 175-178 [46]-[57] in which Forgie DP takes a different view. Respectfully, I disagree with her view, for the reasons I gave in Smith and Australian Federal Police [2016] AATA 531 at [25] note 15.

[32] Section 3(2)(b).

[33] See Besser and Department of Employment [2015] AICmr 67at [22].

[34] FOI Guidelines at [6.19], paragraph (c).

[35] FOI Guidelines at [6.22], paragraph (b).

[36] See [36] above.

[37] See [20]-[29] above.

[38] FOI Guidelines at [6.8]. The objects of the FOI Act are set out in ss 3 and 3A.

[39] See note 22 above.

[40] Besser and Department of Employment [2015] AICmr 67 at [53].

[41] See [25] above.

[42] In the decision under review, the Commissioner explained that the Department was required to provide Mr Besser with copies of the documents he requested, modified (under s 22 of the FOI Act) by the deletion of exempt material and material irrelevant to Mr Besser's requests: [2015] AICmr 67 at [3]. However, as I understand the Commissioner's decision, its effect was that the documents that Mr Besser requested contained irrelevant material but no exempt material: [2015] AICmr 67 at [1]. I have decided that the 19 documents in issue in this review are exempt: Mr Besser should be given copies of those 19 documents, modified by the deletion of the exempt material. In varying the Commissioner's decision, to achieve this result, I have expressly not varied that part of his decision requiring the redaction of exempt and irrelevant material, even though I do not think that his decision identified any exempt material.