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

Freedom of Information - Whether material irrelevant to the request - Whether documents contain deliberative matter prepared for a deliberative purpose - Whether disclosure would have an adverse effect on the proper and efficient conduct of the operations of an agency - Whether disclosure of personal information unreasonable - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 22, 11A, 47C, 47E(d) and 47F

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed decision of the Department of Home Affairs (the Department). I substitute my decision that:
   • The Department has not met its onus to demonstrate that duplicate information is irrelevant to the request.[1]
   • The material the Department maintains is conditionally exempt under s 47C is conditionally exempt under that provision but disclosure would not be contrary to the public interest.
   • The email address of an operational mailbox that is publicly available is not conditionally exempt under s 47E(d).
   • The remaining email addresses of operational mailboxes, which the Department maintains are conditionally exempt under s 47E(d), are conditionally exempt under that provision but disclosure would not be contrary to the public interest.
   • The names (including names in email addresses) which have been inconsistently deleted from the documents, or have been deleted inconsistently with the Department's policy on the deletion of staff names (as advised to the applicant)[2], are not conditionally exempt under s 47F.
   • The remaining names and contact details of departmental officers which the Department maintains are conditionally exempt under s 47F, are conditionally exempt under that provision and disclosure would be contrary to the public interest.

1. This decision discusses the application of various exemptions to documents comprising internal correspondence relating to a previous FOI request by the applicant. It is primarily of interest to the parties in relation to the specific documents sought.

1. In summary, the applicant requested access to certain documents relating to a previous FOI request.[3]
2. The applicant sought Information Commissioner review (IC review) of the Department's deemed access refusal decision. The Department made a purported decision to provide access to the documents with material deleted under ss 22, 47C, 47E(c) and 47E(d). The Department later advised it considers staff names and contact details, which it initially deleted under ss 22 and 47E(c), to now be conditionally exempt under s 47F. The applicant has not provided substantive submissions during the IC review.
3. The issues to be decided in this IC review are:
   • whether certain material is irrelevant (s 22)
   • whether certain material is conditionally exempt under ss 47C, 47E(d) and 47F of the FOI Act, and if so, whether giving the applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest

(s 11A(5)) 4. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[4] 5. In making my decision, I have had regard to the following: * the Department's purported decision and reasons for decision of 15 July 2021 * the FOI request of 12 February 2021 (and revisions to the scope) * 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.

1. The Department maintains that duplicate information, consisting of copies of emails that are included elsewhere in the documents, is irrelevant to the request.
2. The FOI Guidelines note that 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. [8]
3. The Department's submissions on this issue were general and did not specifically address whether the applicant agreed to remove duplicates (copies of documents that appear elsewhere in the documents at issue) from scope. The applicant did not provide substantive submissions on this issue.
4. I have reviewed the correspondence between the Department and the applicant about the scope of the FOI request. On 18 May 2021, the Department wrote to the applicant to request they 'consider further revising the scope of part 1 to exclude iterations of documents already sent to you'. On the same date, the applicant agreed to the revised scope.
5. While I accept that the applicant agreed to exclude documents already sent to them, it does not appear that they agreed to remove duplicates from scope. On this basis I consider the Department has not met its onus to demonstrate that the duplicates are irrelevant.

1. For the above reasons, having considered the revised scope of the request and guidance, I consider the duplicates are relevant.

1. A document is conditionally exempt under s 47C if its disclosure would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or 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 or a Minister or the Government of the Commonwealth.
2. The Department maintains that material is exempt under s 47C because it contains opinions and deliberations prepared in the course of a deliberative process. The Department advised the deliberative material relates to internal discussions between the Department's FOI and Crime Prevention sections regarding an earlier FOI request from the applicant.
3. The applicant did not provide substantive submissions on this issue.
4. I have considered the terms of the applicant's FOI request and reviewed unedited copies of the documents at issue. It is apparent that the Department's above description of the material (at [15]) is accurate.
5. On this basis, I accept the relevant material consists of opinions and deliberations prepared in the course of, or for the purposes of, a deliberative process, being deliberations about the processing of the applicant's previous FOI request. Taking into account the content and context of the documents and the Department's submissions, I accept that these deliberative processes were involved in the functions of the Department, being the processing of an FOI request under the FOI Act. The material is therefore conditionally exempt under s 47C.

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

Certain operations of agencies exemption (s 47E(d))

1. A document will be conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (s 47E(d)).
2. The Department submitted the material at issue is comprised of the following Departmental operational mailboxes:
   • Executive Support
   • Registrations in relation to the Ministers Office
   • Department Liaison Officers to the Ministers Office
   • Government Relations in relation to the Australian Border Force
3. The Department advised these operational mailboxes were created primarily for internal communications and processes, and any public use would hinder the efficiency of their intended purpose.
4. As the email addresses would be subject to publication on the Department's disclosure log if released, the material would be readily available to the public at large. The email addresses for the mailboxes are not otherwise publicly available, and disclosure could reasonably be expected to result in potential 'troublesome' communication and public inquiries, which the responsible operational areas are not resourced to manage.
5. If the material were to be released to the public at large, ongoing communication and/or public enquiries could diminish the efficiency and effective management of these mailboxes, which would lead to the highly probable need for the Department to change them.
6. The applicant did not provide substantive submissions on this issue.
7. Previous IC review decisions have found that internal email addresses of operational mailboxes are not conditionally exempt under s 47E(d) in certain circumstances. This includes where they are publicly available, where they have been used to communicate with external stakeholders, or where insufficient supporting evidence is provided to substantiate how disclosure would, or could reasonably be expected to, result in a substantial adverse effect on the operations of the agency.[9] However, where it is clear that the release of this type of information would likely result in having a substantial adverse effect on an agency's proper and efficient operations, this type of information could be conditionally exempt under s 47E(d).[10]
8. Based on my review of the documents and their context, I accept that these operational mailboxes are intended for internal use only, and with one exception[11], do not appear to be publicly available. I accept that the email addresses were created for particular purposes, and disclosure would likely result in operational areas receiving public correspondence that do not relate to the purpose for which they were created. I accept that this would hinder their efficiency. Noting the size of the Department and its range of functions, I accept that it would likely have a substantial adverse effect on the Department's proper and efficient operations.
9. I do not give much weight to the impact of one-off changes to operational email mailboxes on the Department's operations, although I accept that if there is a need to continually change the email addresses for the mailboxes this would likely add to the impact on the Department's proper and efficient operations discussed above.

1. For the above reasons, I do not consider that disclosure of the email address for an operational mailbox that has already been publicly disclosed in documents released in connection with a different FOI request, would, or could reasonably be expected to, result in a substantial adverse effect on the Department's operations.[12] In my view, this email address is not conditionally exempt under s 47E(d).
2. I am satisfied that release of the remaining email addresses for operational mailboxes would, or could reasonably be expected to, have a substantial adverse effect on the Department's operations. I therefore find that this information is conditionally exempt under s 47E(d).

1. This provision applies where the document contains 'personal information'; disclosure in response to the applicant's FOI request would be 'unreasonable' (s 47F(1)); and it would be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).

Whether the documents contain personal information

1. The Department advised the material consists of staff names and contact details.
2. 'Personal information' under the FOI Act has the same meaning as in the Privacy Act 1988 (Cth). Based on my review of the documents, I consider that the names and contact details which identify the individuals and make them reasonably identifiable with the contents and context of the documents, are personal information for the purposes of s 47F(1) of the FOI Act.

Would disclosure involve an unreasonable disclosure of personal information?

1. In summary, the Department submitted:
   • The names are not well known or publicly available and would only be known to a limited group of people with a business need to know.
   • The personal information is not available from publicly accessible sources.
   • Disclosure of the names and contact information would also not have any protections in relation to further disclosure, and no caveats regarding further disclosure can be placed on information once it is released under the FOI Act.
2. The applicant did not provide substantive submissions on this issue.
3. I have examined the unedited documents, and have considered the submissions against the mandatory factors in s 47F(2) and other relevant factors.
4. The Department has inconsistently deleted some staff names.[13] They have also deleted names inconsistently with the Department's policy on the deletion of staff names.[14] To the extent that specific names have been inconsistently deleted from the documents which have been released to the applicant, or have been deleted in a manner that is inconsistent with the Department's policy, I do not consider further disclosure of the name would be unreasonable.
5. In relation the remaining names, I acknowledge that in a general sense disclosure of names of departmental staff and others may promote the public interest in government transparency and integrity and provide additional context to documents released under the FOI Act. However, based on the content and context of these specific documents, and the nature of the government action reflected in the documents, I do not consider disclosure of the names would significantly promote transparency around actions and decisions made by agencies or their staff in this case.
6. This is because the documents are comprised of internal correspondence between departmental staff members about an FOI request made by the applicant. The government action is mainly operational in nature and does not involve government decision making in any significant sense. Based on my examination of the documents at issue, I consider disclosure of the relevant employee names, which includes the names of many individuals who have been copied into the emails, would not have any effect in altering the importance of the documents.
7. A substantial amount of information has been disclosed to the applicant already, and further material will be disclosed as a result of this decision. In my view, this information combined with the other content provides sufficient transparency and context to understand the documents and scrutinise actions taken by the Department in the circumstances. In my view, having regard to the content and context of the documents at issue, the following factors weigh against disclosure of the documents in this case:
   • The information is not well known or publicly available and the individuals are not known to be associated with the subject matter of the documents.
   • Given the applicant is a journalist, the potential for the names to enter the public realm cannot be entirely dismissed, notwithstanding the applicant's intentions.
   • As the Department noted the documents include internal discussions between the Department's FOI and Crime Prevention sections. It is apparent from this submission and the documents at issue that some of the named agency staff work in law enforcement roles. As noted in previous decisions, in these circumstances disclosure would create an unnecessary risk that staff or third parties may be contacted directly by individuals aggrieved by the decision-making processes of the Department.
   • As noted above, the release of the names would only promote the public interest in government transparency and integrity to a limited extent.
8. Having weighed the relevant factors, I consider that, on balance, disclosure of the documents would involve an unreasonable disclosure of personal information because the factors against disclosure outweigh those in favour of disclosure.

1. I am satisfied that the personal information of staff is conditionally exempt under

s 47F of the FOI Act, except for the personal information of individuals whose names have been inconsistently deleted from the documents, or have been deleted in a manner that is inconsistent with the Department's policy on the deletion of staff names.

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

1. Having found material in the documents to be conditionally exempt under ss 47C, 47E(d) and 47F 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.
2. 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.[15]
3. In summary, the Department maintains:
   • access to the documents would not meaningfully promote the objects of the FOI Act.
   • the operational material may have some character of public importance, if only for awareness and/or intrusive intentions. no insights into public expenditure will be provided through examination of the documents.
   • the applicant is not seeking to access their personal information.
4. The applicant did not provide substantive submissions on this issue.

Material found to be exempt under s 47C (deliberative processes)

1. The documents are comprised of internal correspondence related to an FOI request made by the applicant. In this context, based on my review of the material, I consider disclosure would promote the objects of the FOI Act by revealing information that informed the Department's decision on the applicant's FOI request. In this sense it would also enhance the scrutiny of government decision making.
2. The public interest factors favouring disclosure must be balanced against any public interest factors against disclosure. In this case the Department relied mainly on the impact to frankness and candour. In particular, the Department submitted disclosure could reasonably be expected to inhibit the open exchange of different views, guidance and deliberations between agency officers.
3. The FOI Guidelines note:

6.249 Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia's democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished.

4. In these circumstances, as the FOI Guidelines note, frankness and candour claims should be approached cautiously and in accordance with ss 3 and 11B. Generally, the circumstances will be special and specific.[16] In this case I do not consider that the Department has established that there are special and specific circumstances that merit a conclusion that disclosure of the documents at issue might reasonably be expected to have the effect of inhibiting candour and frankness in the manner alleged by the Department.
5. Accordingly, I am of the view that the disclosure of the 47C material would not, on balance, be contrary to the public interest.

1. The 47E(d) material is comprised of email addresses for operational mailboxes. In this context, based on my review of the material, I consider disclosure would promote the objects of the FOI Act in a minimal way by revealing government information. However disclosure of this material would not enhance the scrutiny of government decision making or promote debate on a matter of public importance.
2. The Department submitted disclosure of the 47E(d) material may compromise the effectiveness of internal operational processes of the Department. For the reasons outlined above at [26] - [30] I accept the Department's submission and give weight to this factor against disclosure.
3. On balance I consider the factor against disclosure, which I have given greater weight, outweighs the factor favouring disclosure.

1. The Department submitted disclosure of the 47F material could reasonably be expected to prejudice the privacy of the individuals, and it is in the public interest for the Department to meet its obligations under the Privacy Act.
2. Above I found that disclosure of the staff names and contact details would be unreasonable in the circumstances. In my view this factor weighs against disclosure.
3. While release of the conditionally exempt information would promote the objects of the FOI Act generally, in my view, taking into account the nature and context of the particular material and the submissions, this public interest consideration does not carry much weight in these circumstances in relation to the 47F material (for the reasons outlined above at [37] - [39]).
4. On balance I consider the factors against disclosure, which I have given greater weight, outweigh the factors favouring disclosure.

1. For the above reasons, I consider it would be contrary to the public interest to release the relevant material which I have found to be conditionally exempt under

ss 47E(d) and 47F. However, it would not be contrary to the public interest to release the material which I have found to be conditionally exempt under s 47C.

General Manager Freedom of Information Case Management

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

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

Section 11A(5) of the FOI Act states the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

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 or Minister decides:
  • to refuse to give access to an exempt document (s 22(1)(a)(i)), or
  • that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access, 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.[17]

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

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

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

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

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

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

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

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

Firstly, the decision maker must be satisfied that information within the scope of the request includes deliberative matter. Secondly, if the decision maker is satisfied, they are then required to be satisfied that the deliberative matter was obtained, prepared or recorded in the course of, or for the purposes of, deliberative processes. Thirdly, the decision maker must be satisfied that the deliberative processes were involved in the functions exercised by or intended to be exercised by an Australian Government agency or minister.[18]

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).[19]

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

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

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

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function (s 47C(3)).[20]

Agencies and ministers should only claim this conditional exemption in clearly applicable circumstances, noting that s 47C is subject to an overriding public interest test that is weighted toward disclosure. Not every document generated or held by a policy area of an agency is 'deliberative' in the sense used in this provision, even if it appears to deal with the development or implementation of a policy. This is reinforced by the language of the FOI Act which describes what does not constitute 'deliberative matter'. A decision maker should ensure that the content of a document strictly conforms with the criteria for identifying 'deliberative matter' prepared or recorded for the purposes of a 'deliberative process' before claiming this conditional exemption (see [6.46] above and [6.59] - [6.58] below).[21]

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.[22]

• 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.[23]

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.[24]

Certain operations of agencies exemption (s 47E(d))

Section 47E(d) of the FOI Act states a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

As discussed in the FOI Guidelines[25] and in IC review decisions,[26] a document is conditionally exempt under s 47E(d) if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

With respect to the term 'substantial adverse effect', the FOI Guidelines also 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)).[27]

Further, in Re James and Others and Australian National University (1984) 6 ALD 687; [1984] AATA 501, Deputy President Hall explained:

As a matter of ordinary English, I think that the expression "the conduct of the operations of an agency" is capable of extending to the way in which an agency discharges or performs any of its functions. [28]

Section 47F of the FOI Act states 'A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).'

Section 4(1) of the FOI Act states 'personal information' has the same meaning as the Privacy Act 1988, which provides:

personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a) whether the information or opinion is true or not; and

(b) whether the information or opinion is recorded in a material form or not.[29]

Section 47F(2) of the FOI Act states that in determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister decision maker must have regard to the following matters:

• the extent to which the information is well known
• whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document
• the availability of the information from publicly available sources, and
• any other matters that the agency or Minister considers relevant.

As discussed in the FOI Guidelines and IC review cases,[30] the main requirements of this public interest conditional exemption are that a document contains 'personal information;' disclosure in response to the applicant's FOI request would be 'unreasonable' (s 47(1)); and it would be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).

The FOI Guidelines explain that the test of 'unreasonableness' in s 47F 'implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals'.[31]

In addition to the mandatory factors outlined at s 47F(2) of the FOI Act, the FOI Guidelines explain that other relevant factors include:

a) the author of the document is identifiable

b) the document contains third party personal information

c) release of the document would cause stress to the third party

d) no public purpose would be achieved through release.

• the nature, age and current relevance of the information
• any detriment that disclosure may cause to the person to whom the information relates
• any opposition to disclosure expressed or likely to be held by that person
• the circumstances of an agency's or minister's collection and use of the information
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
• any submission an FOI applicant chooses to make in support of their request as to their reasons for seeking access and their intended or likely use or dissemination of the information and
• whether disclosure of the information might advance the public interest in government transparency and integrity.[32]

The last-mentioned factor - the public interest in government transparency and integrity - is to be balanced with all other relevant factors arising in the particular case, including the private interest that third party individuals may have in maintaining privacy of their personal information.[33]

Section 11A(5)of the FOI Act states the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Section 11B(3) of the FOI Act sets out a non-exhaustive list of public interest factors favouring disclosure for consideration, those factors being where disclosure of the document would do any of the following:

(c) promote effective oversight of public expenditure

(d) allow a person access to their personal information.

Section 11B(4) of the FOI Act also lists the following irrelevant factors that must not be taken into consideration when deciding whether access would, on balance, be contrary to the public interest:

(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government

(b) access to the document could result in any person misinterpreting or misunderstanding the document

(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made

(d) access to the document could result in confusion or unnecessary debate.

In addition to the factors set out at s 11B(3) of the FOI Act, the FOI Guidelines set out a further non-exhaustive list of public interest factors in favour of disclosure, as well as public interest factors against disclosure.[34]

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.[35]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] For completeness, my decision below in relation to the application of the exemptions applies equally to duplicates as it does to the original versions of those documents which appear elsewhere in the documents at issue.

[2] This includes, for example, the name of an Acting SES member on page 5 of the documents.

[3] The Department initially treated this request as Part 1 of a broader request from the applicant involving three parts. The applicant objected to that approach (as per the applicant's email of 7 May 2021). The applicant revised their request as follows, 'Documents within scope from 20 January to 4 February [2021, mentioning or relating to FOI request FA 20/09/00115].' The applicant then agreed to exclude documents already sent to them, and clarified the nature of the correspondence in scope.

[5] Sections 11A, 47C, 47E(d) and 47F 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] FOI Guidelines at [3.54] footnoting Re Gould and Department of Health [1985] AATA 63.

[9] See, for example, 'ADM' and Services Australia (Freedom of information) [2023] AICmr 38 (19 May 2023) and Paul Farrell and Australian Federal Police (No. 5) (Freedom of information) [2024] AICmr 181 (29 August 2024).

[10]'ATD' and Department of Home Affairs (Freedom of information) [2025] AICmr 9 (13 January 2025)

[11] In particular an operational email address, which appears in several parts of the documents, including the second 47E(d) deletion on page 4, was disclosed in documents released by another agency regarding a separate FOI request.

[13] For example, this includes (but is not limited to) the names which the Department has inconsistently deleted on pages 31 and 32 in Document 10.

[14] This includes, for example, the name of an Acting member of the Senior Executive Service (SES) on page 5 of the documents. As set out in the acknowledgement email to the applicant from the Department dated 18 February 2021, the Department's policy at the time was to exclude the personal details of staff not in the SES, as well as the direct contact details of SES staff, contained in documents that fall within scope of an FOI request.

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

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

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

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

[25] See FOI Guidelines at [6.90] - [6.92], and [6.112] - [6.118] and the cases referenced there.

[26] See, Raymond Williams and Department of Defence (Freedom of information) [2023] AICmr 26; Refugee Advice & Casework Service and Department of Foreign Affairs and Trade (Freedom of information) [2023] AICmr 16; Christis Tombazos and Australian Research Council (Freedom of information) [2023] AICmr 14; 'ACF' and Australian Public Service Commission (Freedom of information) [2022] AICmr 73; Rex Patrick and Department of the Prime Minister and Cabinet (No. 2) (Freedom of information) [2022] AICmr 66; 'ZA' and Department of Veterans Affairs (Freedom of information) [2021] AICmr 83; Australian Society for Kangaroos and Rural Industries Research and Development Corporation trading as AgriFutures Australia (Freedom of information) [2019] AICmr 31; and 'PR' and Comcare (Freedom of information) [2019] AICmr 2.

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

[29] Section 6(1) of the Privacy Act 1988 (Cth) (emphasis in original).

[30] Generally, see FOI Guidelines at [6.119] - [6.155]; 'AEE' and Department of Defence (Freedom of information) [2023] AICmr 69; 'AED' and Australian Criminal Intelligence Commission (Freedom of information) [2023] AICmr 67; 'OE' and Australian Taxation Office (Freedom of information) [2018] AICmr 29.

[32] FOI Guidelines at [6.137] - [6.138] (footnotes omitted).

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

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