The applicant also sought that the Tribunal review the respondent's determination that only three documents fell within the scope of his FOI request.

The applicant submitted that opinions contained within documents do not need the same protection as personal information, and that there may be a specific public interest in disclosing the opinions of particular groups, especially where there are matters of public policy involved. He further argued that the public need to be able to access information regarding policy decisions made by the government, to understand who is principally influencing those decisions.

The respondent submitted that the documents are exempt under clause 9 of schedule 1 of the FOI Act as they relate to a consultation or deliberation undertaken in the course of, or for the purpose of, the decision-making functions of the government, a minister or an agency. They further submitted that there was an inferred understanding of confidentiality attached to the documents in their creation, and that releasing the documents could undermine the trust of First Nations people and communities in government. The respondent also argued that the release of the documents would be contrary to the public interest, as it may lead to adverse cultural impacts and unfair criticism of First Nations people or communities.

• The Tribunal does not have jurisdiction to review the determination that there were only three documents that fell within the scope of the applicant's application under the FOI Act;
• The Tribunal determined that both documents were exempt from disclosure under clauses 9 and 13 of schedule 1;
• The Tribunal concluded that both documents:
  1. contain matter relating to consultation that has taken place in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency (cl 9(1)(a)(ii)); and
  2. contain matter obtained in confidence the disclosure of which might reasonably be expected to prejudice the future supply of such information to the Government or to an agency (cl 13(1)(b)(i)); and
  3. the disclosure of the matter would, on balance, be contrary to the public interest (cll 9(1)(b) and 13(1)(b)(ii));
• Having found that documents are exempt under clauses 9 and 13, the Tribunal found tht the correct or preferable decision is to affirm the decision made by the respondent not to disclose the two documents to the applicant.

Administrative Review - Freedom of Information Act 1991 - Person aggrieved by a determination made following an internal review - Whether a document is an exempt document - Public interest considerations

Freedom of Information Act 1991 ss 3, 3A, 12, 20, 26, 27, 28, 48

South Australian Civil and Administrative Tribunal Act 2013 s 34

Bradshaw v SA Police [2012] SADC 184

City of Unley v Warnecke [2004] SADC 48

Patrick v Minister for Energy and Mining [2021] SACAT 62

Proudfoot v Attorney-General's Department 2024/SA000261

Re Howard and the Treasurer of the Commonwealth of Australia [1985] AATA 100

Richardson v Business Licensing Authority [2003] VCAT 1053

Singer & Ors v Anangu Pitjantjatjara Yankunytjatjara & Anor [2024] SACAT 23

South Australia Police v Patrick [2023] SACAT 82

Treglown v SA Police [2011] SADC 139

1. The issue in dispute in this application for review is whether two documents to which the applicant seeks access from the respondent are exempt from disclosure under the Freedom of Information Act 1991 (FOI Act) and should not be disclosed to him.
2. The decision under review was made by Ms Caroline Mealor, Chief Executive of the Attorney-General's Department. These reasons explain why I have decided that the decision under review should be affirmed.
3. In making this decision, I have taken into account the materials provided to the Tribunal and the written submissions of the parties. Elements of the parties' respective submissions are discussed in the body of these reasons.
4. I have taken into account two affidavits tendered by the respondent. These are the affidavit of Ms Mealor dated 18 June 2024 and the affidavit of Ms Nerida Saunders, Executive Director, Aboriginal Affairs and Reconciliation, Attorney-General's Department, dated 9 July 2024. Some aspects of the affidavit material are more in the nature of submissions to the Tribunal rather than facts per se, and I have dealt with them as submissions in making my decision.
5. I have closely read the documents to which the applicant seeks access.
6. The applicant was unrepresented in these proceedings. I have taken this into account, including that he may not have been able to present his argument to the Tribunal in the same manner as if he had been legally represented. I have also taken into account that, as with all applicants for review of decisions relating to disclosure of documents, the applicant made submissions to the Tribunal without having seen the documents that are the subject of his application. The applicant's difficulties in this respect are acknowledged by him in his written submission.

Review under s 34 South Australian Civil and Administrative Tribunal Act 2013

1. The Tribunal conducts its review of Ms Mealor's decision as an independent body. The Tribunal will, in exercising its review jurisdiction, examine the decision of the decision-maker by way of rehearing. On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
2. The procedure on a rehearing will include an examination of the evidence or material before the decision-maker and consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.
3. Any factual findings made by the Tribunal must be established on the balance of probabilities.
4. After making its decision, the Tribunal can affirm or vary the decision under review or can set the decision aside and either substitute its own decision or send the matter back to the decision-maker for reconsideration.

1. Under s 12 of the FOI Act, a person has a legally enforceable right of access to an agency's documents.
2. The objects of the FOI Act are found in s 3 and are, briefly, to promote openness and accountability in government and to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies. Section 3A(1)(a) of the FOI Act states that it is the intention of the Parliament that the Act should be interpreted and applied so as to further the objects of the Act.
3. Section 3 indicates clearly that the right of access to documents is subject only to such restrictions as are consistent with the public interest and the preservation of personal privacy. Similarly, s 3A states that it is the Parliamentary intention that administrative discretions under the FOI Act be exercised, as far as possible, in a way that favours disclosure of information without infringing the right to privacy of individuals.
4. Under s 20, an agency may refuse access to a document if it is an exempt document (by reference to the categories of exempt documents in the 19 clauses of Schedule 1 of that Act).
5. Despite a document being an exempt document, a decision-maker has a discretion to nevertheless release the exempt document to the applicant. Also, under s 20(4) of the FOI Act, where only part of a document contains exempt material, access under the FOI Act can be given to a copy of the document with the exempt material redacted if it is practicable to do so and it appears to the agency that the applicant would wish to be given access to such a copy.
6. In some situations, an agency is unable to give access to a document unless the agency has taken reasonably practicable steps to obtain the views of certain persons as to whether the document is an exempt document.[1]
7. Under s 48 of the FOI Act, the burden of establishing that a determination is justified lies on the relevant agency.
8. As these proceedings concern clauses 6(1), 9(1) and 13(1)(b) of Schedule 1 of the FOI Act, I set relevant parts of them out below:

6 - Documents affecting personal affairs > > (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead). > > 9 - Internal working documents > > (1) A document is an exempt document if it contains matter - > > (a) that relates to -

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or

(ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and

(b) the disclosure of which would, on balance, be contrary to the public interest.

13 - Documents containing confidential material

(1) A document is an exempt document -

...

(b) if it contains matter obtained in confidence the disclosure of which -

(i) might reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and

(ii) would, on balance, be contrary to the public interest.

1. On 2 January 2024, an application under the FOI Act was received by the respondent from the applicant for access to documents concerning (broadly speaking)[2] consultations undertaken in respect of the State's First Nations Voice. This application was subsequently not decided within the time stipulated under the FOI Act and therefore, under that Act, became a "deemed refusal" of access to the documents.
2. The applicant applied for internal review of the "deemed" decision on 7 May 2024.
3. On 20 May 2024, Ms Mealor, wrote to the applicant notifying him of her decision on the internal review.[3]
4. Ms Mealor indicated in her decision that three documents were found to be within the scope of the applicant's request under the FOI Act. Ms Mealor determined to refuse access to Document 1 and Document 2. Ms Mealor found that Documents 1 and 2 were exempt under clauses 6, 9 and 13. The third document was released to the applicant.[4]
5. In an affidavit prepared for these proceedings, Ms Mealor explains that:

[Document 1 is] an excel spreadsheet titled "The Voice to SA Parliament Consultation Results". Document 1 records all answers to the Voice to South Australian Parliament survey results taken during stage 2 of the community engagement sessions. A number of the responses relate to youth and elder representation. The surveys are identified by which session they were provided in. There are approximately 200 responses. > > [Document 2 is] a word document titled "Session Notes Themes Summary". Document 2 records the notes taken of comments or submissions made in community engagement sessions. They are categorised into different "themes", including under the heading "diversity" and headings "youth" and "elders and elderly". The comments are identified by which session they were provided in.[5]

6. She asserted that the information contained in the documents is sensitive and relates to vulnerable people and communities.[6]
7. Ms Mealor stated in her affidavit that Aboriginal Affairs and Reconciliation (AAR) in the Department assisted the Commissioner for the First Nations Voice (Commissioner) in consulting with the community and that AAR had provided Ms Mealor's office with the following information:

Documents 1 and 2 contain the opinions of First Nations people that were expressed during community engagement sessions during the establishment of the South Australian Voice to Parliament. > > Participation in community engagement sessions was available only to First Nations people, and not to the general public. > > First Nations people hold information relevant to them and their communities that is not available to others. Information and opinions given in community engagement sessions were given on an understanding within communities that at that time and in that place they have the authority to speak on those matters discussed, and so were able to speak openly and honestly. > > In some circumstances this understanding may have been informed by prior engagement with members of the community who have cultural authority which would not have been recorded as it would have been culturally inappropriate to do so. > > The information and opinions given by members of the community were provided on an understanding that they would be used to inform the Commissioner on their community's views so that they could be considered in the development of the First Nations Voice, and not for any broader purpose. > > Documents 1 and 2 were prepared as an aid to the Commissioner, who had specific knowledge of the context in which the opinions were provided.[7]

8. In the internal review decision, Ms Mealor stated in respect of clause 6 that:

I consider that documents 1 and 2 contain information concerning personal affairs of individuals and are therefore exempt under Schedule 1, clause 6(1) of the FOI Act and the disclosure of this information would be unreasonable. > > Document 1 details the views and opinions provided by First Nations communities in response to an engagement survey conducted by the Commissioner for First Nations Voice (Commissioner) and AAR for the purposes of refining draft legislation and developing the proposed model to establish the First Nations Voice based on the feedback received. Document 2 summarises the themes arising from community consultation meetings which, in some instances, were not open to the public but targeted exclusively towards First Nations communities. > > The survey and broader consultation were conducted on the basis that responses would be used to inform government policy and not be made publicly available. The participants provided their responses on the assumption that their identities and personal views would not be identifiable. Given the responses can be linked back to particular regional sessions, there is a possibility that community members could be identified given the limited number of individuals that attended some of the consultation meetings and the small nature of some of the communities that were involved in the consultation process.

9. In respect of clause 9, she stated in the internal review decision:

In my view documents 1 and 2 are exempt pursuant to clause 9(1) as the information contained within includes opinions and recommendations that have been obtained in the course of consultation processes conducted for the purposes of informing government policy. > > I have carefully considered the public interest factors for and against disclosure. I have had regard to the fact that the documents were prepared to inform policy, do not represent the settled position, the importance of frankness and candour in decision making and the sensitivity of the issues. I have also had regard to openness and accountability of government. On balance, I consider that it would be contrary to the public interest to disclose the documents.

10. In respect of clause 13, Ms Mealor stated in the internal review decision:

Documents 1 and 2 contain information regarding the consultation process involving members of First Nations communities and AAR, a government body. I consider the responses and views expressed therein were provided with the expectation of confidentiality and, therefore, the information contained within these documents was obtained in confidence. > > I consider the disclosure of documents 1 and 2 might reasonably be expected to prejudice the future supply of information to the government. > > I have carefully considered the public interest factors for and against disclosure. I have had regard to the sensitive subject matter, the vulnerability of First Nations communities, and the risk of damage to relationships within communities and with the government. I have also considered the principles of openness and accountability in government. On balance, I consider that it would be contrary to the public interest to disclose the documents.

11. Ms Mealor elaborated on these matters in her affidavit. She stated that:

AAR is often called upon to assist First Nations Communities and holds a position of trust with these communities; > > During the consultation process, the people within First Nations communities have felt safe to raise issues and voice their opinions freely to the Commissioner and AAR; > > The disclosure of the information provided... has the potential to cause distrust in the government and its agencies and therefore inhibit the free flow of information.[8]

1. As noted earlier, Ms Saunders is the Executive Director of AAR, a position which she has held for 15 years. She is a First Nations Murri woman from the Kamilaroi Nation. I consider that I should place significant weight on the information provided by Ms Saunders due to her background in respect of the matters in her affidavit.
2. Ms Saunders stated the following in her affidavit (paragraph numbering omitted):

For the purposes of refining the draft legislation and developing the proposed model to establish the First Nations Voice to South Australia's Parliament (the Voice), from August to October 2022 (first consultation process) and November 2022 to January 2023 (second consultation process), the Commissioner for the First Nations Voice (the Commissioner) consulted with members of the Aboriginal community. > > Although I did not personally attend the consultations, as the Executive Director of AAR, I have been involved in establishing the Secretariat and the administrative arrangements for the Voice. AAR staff provided support to the Commissioner. Additionally, I have participated in numerous consultations with Aboriginal communities in the past, both as a First Nations Murri woman and in my capacity as Executive Director of AAR and can speak to consultation processes and engagement with Aboriginal communities in a general sense. > > This affidavit is provided for the purposes of external review proceedings instituted by the applicant in the South Australian Civil and Administrative Tribunal (SACAT). I am aware of the facts deposed to in this affidavit from my involvement in the establishment of the Voice and from additional information provided to me by the Office of the Chief Executive (OCE) ... > > Cultural understanding of confidentiality > > Documents 1 and 2 summarise the outcomes of community consultations held among Aboriginal community members. These consultations were deliberately exclusive, in that they were restricted to Aboriginal participants only. I will refer to these discussions as "closed" in my statement. > > In my experience of organising and attending consultation with Aboriginal communities, restricting consultation to Aboriginal participants in a closed discussion is designed to encourage open and candid dialogue. This is a deliberate approach which aims to create a safe and culturally appropriate environment where sensitive topics can be addressed openly, with an assurance of confidentiality regarding participants' insights. Within Aboriginal communities, there is a deeply rooted expectation that discussions held in such contexts remain private, safeguarding the integrity and privacy of cultural and community perspectives. > > In my experience engaging in consultations with the Aboriginal community, it is usual practice to reassure participants in a closed discussion that while minutes may be recorded, personal identifiers will be anonymised to protect contributors' privacy. Participants generally engage under the assumption that their insights will inform official responses without the detail of their specific comments being publicly attributed. The decision to conduct closed consultations, rather than in a public forum, reflects a strategic approach to encourage genuine and uninhibited expression among Aboriginal individuals, who might otherwise feel constrained or guarded in more exposed settings. > > The format of closed consultations is important in fostering an environment where participants feel comfortable freely discussing issues of cultural significance and complexity. Attendees feel reassured by the shared cultural understanding within the group, facilitating nuanced conversations without fear of misinterpretation or external scrutiny. There is a tacit understanding amongst participants of the importance of confidentiality, stemming from the private nature of consultations. > > Within Aboriginal communities, there exists deeply ingrained cultural protocols and expectations surrounding the sharing of knowledge and information. These protocols extend to community expectations and perceptions of privacy. One particularly sensitive area of discussion is the role of Elders and the cultural dynamics involving young people. Different Aboriginal communities hold varying views on Elder status and the traditional practices concerning youth, which adds layers of complexity to internal dialogues. > > These cultural nuances and complexities are well-understood within Aboriginal communities but may not be apparent to non-Aboriginal people. Consequently, releasing documents relating to closed consultation to those unfamiliar with these cultural contexts poses a significant risk of misinterpretation and unjust criticism of Aboriginal practices and behaviours. Such misunderstandings could exacerbate the vulnerability already faced by Aboriginal communities, affecting both internal cohesion amongst those communities and external public perceptions. > > Consultations among Aboriginal community members serve as important platforms for discussing issues that directly impact their lives. These discussions often revolve around matters of great significance, guided by unspoken understandings within the community about the implications of these conversations. The assumption of confidentiality during such conversations is important, as it encourages participants to speak openly without fear of their words being misconstrued or used against them. > > Given the vulnerability of Aboriginal communities, the release of closed consultation documents identifying specific communities and, consequently, individuals within those communities, could potentially escalate conflicts both within and between different Aboriginal groups. This underscores the importance of respecting the confidentiality of closed discussions to ensure that consultation processes remain effective and inclusive. > > AAR holds significant credibility within the Aboriginal community, and I am concerned that disclosing information documented throughout the closed consultations could undermine trust in government interactions. Public disclosure could deter Aboriginal participants in future government consultations, highlighting the necessity of respecting community expectations regarding confidentiality. Upholding these standards is essential for fostering a climate where Aboriginal community members feel safe to participate in consultations and share their perspectives openly and honesty. > > Respecting these expectations encourages continued active engagement from Aboriginal communities, ensuring that consultation processes remain effective avenues for gathering information. > > It reinforces the community's trust in the integrity of these processes, thereby preserving meaningful dialogue between Aboriginal groups and the government.

1. There are two aspects to the applicant's application. The first is that the applicant would like the Tribunal to review Ms Mealor's finding that there were only three documents that were within the scope of his application under the FOI Act. He referred to the respondent having initially indicated that over 800 documents had been identified.[9]
2. In essence, in the applicant's written submission on this first point, he asserts that Ms Mealor's finding that there were only three documents in scope is a "determination" that is reviewable by this Tribunal.
3. However, this is not correct. The Tribunal does not have the jurisdiction to review that issue. It is not a determination that is reviewable by the Tribunal. I agree with the respondent's submissions in this respect. The Tribunal can only review determinations in respect of which the FOI Act confers a review jurisdiction on the Tribunal. A finding as to documents being outside the scope of an application is not one of those. The reasons for that position were canvassed by the President of the Tribunal in the decision of Patrick v Minister for Energy and Mining [2021] SACAT 62 at [19] to [26]. The President then concluded that:

The Tribunal does not have the jurisdiction to review documents that an agency has identified as not falling within the scope of the FOI application or to review the agency's actions in that regard.[10]

4. I respectfully adopt the President's finding for the purposes of the present matter. I consider that this finding conclusively deals with the first issue raised by the applicant. Accordingly, the only issue that can be the subject of this decision is whether Ms Mealor's decision to refuse access to Documents 1 and 2 is the correct or preferable decision. I turn now to that question, starting first with the claimed exemptions under clauses 9 and 13.
5. In arriving at the correct or preferable decision, the Tribunal must first determine if the two documents are exempt under the FOI Act. If they are not exempt, they must be disclosed to the applicant, and any other person who may subsequently seek access to them. Further dissemination of the material cannot be prevented.
6. If the documents are exempt, the Tribunal must consider if there is any reason to exercise the discretion to disclose them. If there is no such reason, they cannot be disclosed to any person, including the applicant. If there is a reason to disclose the exempt material, then it is disclosable to any other person who may seek access to it and its further dissemination by those persons cannot be prevented.
7. In arriving at my decision, I have had regard to and given appropriate weight to the decision made by Ms Mealor as I am required to do when conducting a review.
8. The applicant makes a number of broad submissions as to the respondent's claim for exemptions.
9. I summarise the parties' submissions below but emphasise that I have read all of the parties' submissions in full.
10. In respect of clause 6, the applicant submits that opinions do not need protection to the same extent as personal characteristics, such as those described in health records, and there may well be a specific public interest in divulging the opinions of particular groups. He submits that the names and positions of the people expressing the opinions is of interest to him as he wishes to know what policy positions are being urged on the government and by whom. He submits that the public need to be able to judge whether a few vocal individuals are having a disproportionate influence on government. He submits that while individuals have a right to privacy, groups of persons do not and that whoever issued the assurance that responses would be kept secret may decide to apologise to the survey participants because such an assurance is overridden by the FOI Act.
11. In respect of clause 9, the applicant submits that the sensitivity of material, even extremely sensitive material, is a fact that may favour disclosure rather than suppression, particularly on a matter of public policy. He submits that suppression of these documents would be inconsistent with the principal argument for the Voice, which is that indigenous people complain that they are not heard. He submits that the respondent's position as to the vulnerability of indigenous communities is paternalistic. He submits also that a position that everything other that the settled policy position of the government must be suppressed is totalitarianism.
12. In respect of clause 13, the applicant submits that refusing to release documents so as not to affect the frankness and candour of advice provided to decision-makers is, as a general rule, contrary to the principles of the FOI Act. He also submits that it is perverse to justify a refusal to divulge policy advice given to government on the basis that such release might inhibit the free flow of information.
13. The respondent's position with respect to clause 9 is that there is no doubt that the documents relate to consultation or deliberation that has taken place in the course of, or for the purpose of, the decision-making functions of the government, a minister or an agency.
14. The respondent submits for the purposes of clause 13 that it is "only necessary to show that the document was communicated and received under an express or inferred understanding that it would be kept confidential"[11] and that the circumstances in which the information in the two documents was obtained by the respondent is sufficient to establish that there was an inferred understanding of confidentiality. It submitted that disclosure of information that was given with an expectation that it would be kept confidential could undermine the trust of First Nations people and communities in Government and hinder the relationship between AAR and First Nations people that is relied upon to form policy and law that is appropriate to First Nations people. In both respects, the respondent relied on the information in Ms Saunders' affidavit.
15. In respect of where the public interest lies, the respondent submitted that there were numerous grounds for finding that disclosure of the documents would, on balance, be contrary to the public interest and referred to the following so-called Howard factors, which have been identified as being relevant to the assessment of the public interest:

(i) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;

(ii) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;

(iii) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;

(iv) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;

(v) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.[12]

1. The respondent submitted that the documents do not fully or accurately disclose the reasons for particular decisions in respect of the First Nations Voice and may mislead the public as to the basis for the decisions made and the ultimate approach taken. The consultation sessions took place in the early stages of the development of legislation and policy regarding the Voice, they do not necessarily reflect the nuances of the submissions made or conversations had in those consultations, and do not represent a fulsome account of the Commissioner's consideration of the submissions made in the broader context of consultation and development of policy. It submitted that disclosure would inhibit frankness and candour in communications between government and First Nations people and that there is a public interest in ensuring that policy and legal initiatives in respect of First Nations people are properly informed by full and frank consultation with the relevant communities to ensure that such initiatives involve the appropriate application of public resources to achieve their intended outcomes. The respondent submitted that the documents relate specifically to First Nations people and their culture and disclosure may lead to adverse cultural impacts and unfair criticism or scrutiny of First Nations people or communities which is not in the public interest.
2. Having read the parties' submissions and closely considered Documents 1 and 2, I am satisfied that both documents are exempt under clauses 9 and 13.
3. On the whole, I am not persuaded by the applicant's submissions. I take into account in particular that the FOI Act does not demand a "leaning" towards disclosure and that it provides a scheme for the balancing of competing interests including competing public interests and public interests that compete with private interests.[13]
4. I conclude for the reasons given by the respondent (with which I entirely agree) that both documents:
   1. contain matter relating to consultation that has taken place in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency (cl 9(1)(a)(ii)); and
   2. contain matter obtained in confidence the disclosure of which might reasonably be expected to prejudice the future supply of such information to the Government or to an agency (cl 13(1)(b)(i)); and
   3. the disclosure of the matter would, on balance, be contrary to the public interest (cll 9(1)(b) and 13(1)(b)(ii)).
5. I am satisfied on the evidence that the respondent has correctly categorised the documents as falling within clauses 9 and 13 and has properly applied the principles relevant to identifying where the balance of the public interest lies. I am satisfied, in particular, that the evidence in Ms Saunders' affidavit firmly supports the conclusions drawn by the respondent that disclosure of the documents would, on balance, be contrary to the public interest.
6. In making my decision, I have broadly adopted the approach in a recent decision of the President of the Tribunal under the FOI Act in which the cultural implications to indigenous persons of the disclosure of information was relevant to the making of findings as to the adverse consequences of such disclosure (namely, harassment and intimidation).[14]
7. Having found that documents are exempt under clauses 9 and 13, I find that the correct or preferable decision is to affirm the decision made by Ms Mealor not to disclose the two documents to the applicant. It would be inappropriate to make a finding that the public interest favours non-disclosure and nevertheless to release the documents.
8. I am satisfied that it would not be practicable to release a redacted copy of the two documents pursuant to s 20(4) of the FOI Act as there is unlikely to be much, if anything, remaining unredacted.

1. The respondent provided substantial written submissions to the Tribunal as to the documents both also being exempt under clause 6 on the basis of the opinions recorded in the documents of the individual First Nations persons who participated in the consultations. The respondent submitted that the expression of a person's opinion may form part of their personal affairs and referred the Tribunal to the decisions in Richardson v Business Licensing Authority [2003] VCAT 1053 and City of Unley v Warnecke [2004] SADC 48.[15] It submitted that the opinions expressed by the participants form part of their personal affairs as their opinions are connected to their racial and cultural identity and to their experiences, values and beliefs as First Nations people.
2. As far as I am aware, this type of argument (namely, that opinions per se are personal affairs) has not previously been considered by the Tribunal in decisions under the FOI Act. The question of whether a particular expression of opinion would amount to personal affairs under the FOI Act would depend on the circumstances and could sometimes be a matter of controversy that may require specific evidential material and detailed submissions on the matter.
3. In any event, as I am well satisfied that Documents 1 and 2 are exempt under clauses 9 and 13 and should not be disclosed to the applicant, it is not necessary to consider the other ground of exemption claimed by the respondent. The question of whether the Tribunal should adopt the reasoning in the above decisions to find that an opinion may be a personal affair may be left for the Tribunal to consider on a different occasion when it is critical to the outcome in the proceedings.

[1] Sections 26, 27 and 28 Freedom of Information Act 1991.

1. [2] The full text of the applicant's description of the documents he sought appears in his email to the respondent dated 30 December 2023 (see the respondent's Book of Documents, p 9).

[3] Respondent's Book of Documents pp 4-7.

[4] This was a submission on the First Nations Voice from the Public Law and Policy Research Unit of the University of Adelaide.

[5] Affidavit of Caroline Mealor, [9.1-9.2].

[6] Affidavit of Caroline Mealor, [14.3].

[7] Affidavit of Caroline Mealor, [10].

[8] Affidavit of Caroline Mealor, [16.1-16.3].

[9] See background to this matter discussed by the President in Proudfoot v Attorney-General's Department 2024/SA000261 (unreported, 16 April 2024).

[10] Patrick v Minister for Energy and Mining [2021] SACAT 62 at [26].

[11] Bradshaw v SA Police [2012] SADC 184 at [74].

[12] Re Howard and the Treasurer of the Commonwealth of Australia [1985] AATA 100 at [20].

[13] See South Australia Police v Patrick [2023] SACAT 82 at [25] and the cases cited therein.

[14] Singer & Ors v Anangu Pitjantjatjara Yankunytjatjara & Anor [2024] SACAT 23.

[15] See also Treglown v SA Police [2011] SADC 139.