Freedom of Information - Whether information irrelevant to request - Whether material obtained in confidence - Whether material contains commercially valuable information - 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 11A, 22, 45, 47(1)(b), 47E(d) and 47F

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Department of Health and Aged Care (the Department) of 12 May 2021.
2. I substitute my decision that:
   • The material that the Department maintains is irrelevant (s 22), is irrelevant to the scope of the applicant's request.
   • The material within Documents 31, 37, 38 and 42 that the Department maintains is exempt under s 45 of the FOI Act is exempt under that provision.
   • The material within Document 29 that the Department maintains is exempt under s 45 of the FOI Act is exempt under that provision, except for the material at pages 2-3 and 26 of that document, which is not exempt under that provision.
   • The material at page 3 of Document 39 that the Department maintains is exempt under s 45 of the FOI Act is not exempt under that provision.
   • The material at pages 2-3 of Document 29 and at page 3 of Document 39 that the Department maintains is exempt under s 47(1)(b) of the FOI Act is not exempt under that provision.
   • The material within Document 36 that the Department maintains is conditionally exempt under s 47E(d) of the FOI Act is not conditionally exempt under that provision.
   • The personal leave and individual salary information within Document 29 and the signatures and mobile telephone number within Documents 39 and 40, that the Department maintains is conditionally exempt under s 47F of the FOI Act, is conditionally exempt under that provision and release would be contrary to the public interest at this time.
   • The names of the NHMRC Internal Assessment Committee members in Document 36, the email addresses in Document 39 and the telephone number at page 21 of Document 39, that the Department maintains is conditionally exempt under s 47F of the FOI Act, are not conditionally exempt under that provision.
3. Within 28 days of this decision:
   • the Department must provide the applicant with a copy of the documents, edited under s 22 of the FOI Act only to the extent necessary to delete material I have found to be exempt or irrelevant, and
   • the Department must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision discusses the application of s 22, 45, 47(1)(b), 47E(d) and 47F of the FOI Act to documents regarding Vaccine Development Grants provided to the University of Queensland in relation to Novel Coronavirus and 2020 COVID-19. It is primarily of interest to the parties in relation to the specific documents sought.

1. On 14 April 2021, the applicant sought access to documents of the Grant Assessment Committee regarding two Vaccine Development Grants provided to the University of Queensland from the Medical Research Future Fund in relation to Novel Coronavirus and 2020 COVID-19.
2. On 12 May 2021, the Department identified 42 documents relevant to the scope of the applicant's request. The Department decided to grant part access to Documents 1, 2 and 35 and refuse access to the remaining documents in full, on the basis of the exemptions in ss 22, 45, 47(1)(b), 47C, 47G, 47E(d) and 47F of the FOI Act.
3. The applicant does not seek a review of the Department's decision with respect to Documents 2-28. These documents are therefore excluded from the scope of this review. The applicant contends the material at issue in Documents 1 and 29-42 is not exempt.
4. The Department consulted the University of Queensland (UQ) in processing the applicant's request. The Department also conducted a courtesy consultation with the National Health and Medical Research Council (NHMRC).
5. On 28 February 2025, the Office of the Australian Information Commissioner (OAIC) asked the Department to provide updated submissions addressing the effect of the passage of time, the effect of the decision to halt UQ's development of the vaccine in December 2020 and whether the technology (or some of the technology) is now in the public domain. In response, the Department released further information in the documents and withdrew exemption contentions under ss 47C and 47G of the FOI Act.[1]
6. The issues to be decided in this Information Commissioner review (IC review) are therefore whether:
   • the material that the Department maintains is irrelevant to the scope of the applicant's request is irrelevant
   • the material that the Department maintains is exempt under ss 45 and 47(1)(b) of the FOI Act is exempt under that provision, and
   • the material that the Department maintains is conditionally exempt under ss 47E(d) and 47F of the FOI Act is conditionally exempt under those provisions, 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)).
7. 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.[2]
8. In making my decision, I have had regard to the following:
   • the Department's decision and reasons for decision of 12 May 2021
   • the documents at issue
   • the FOI Act[3]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines),[5] and
   • the parties' submissions.

1. The Department maintains that parts of Documents 36 and 41 are irrelevant to the scope of the applicant's request.
2. When deciding if material is irrelevant to the applicant's request, the FOI Guidelines explain 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.[6]
3. The applicant accepts that the names of non-SES and the names of other persons who are not involved in the decision making for the grants are outside the scope of this review. However, details of personnel involved in review applications or making decisions, regardless of their APS level or commercial level, are within scope.
4. The Department submits that the material in Document 41 comprises the personal information of non-SES APS staff and confirms that the release of this information would not disclose the identities of officers responsible for making any recommendations or decisions contained within the documents.
5. From my review of an unredacted copy of Documents 36 and 41, I agree with the Department that they comprise the names of non-SES staff providing secretariat support for the Internal Assessment Committee.

1. The material that the Department maintains is irrelevant (s 22), is irrelevant to the scope of the applicant's request.

Material obtained in confidence exemption (s 45)

1. The Department contends that Documents 29, 31, 38, 39 and 42 are exempt in part and Document 37 is exempt in full under s 45 of the FOI Act. The documents comprise budget information for direct research costs, the two grant proposals and assessment information including responses to further information.
2. Section 45 of the FOI Act provides that a document is exempt 'if its disclosure under this Act would found an action, by a person (other than an agency of the Commonwealth), for breach of confidence'.
3. The exemption in s 45 does not apply to information merely because it is confidential in nature.[7] A breach of confidence is the failure of a recipient to protect information which has been communicated in circumstances giving rise to an obligation of confidence.[8] The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.[9]
4. The FOI Guidelines relevantly explain that for s 45 to apply, the following five criteria must be satisfied in relation to the information:
   • it must be specifically identified
   • it must have the necessary quality of confidentiality
   • it must have been communicated and received on the basis of a mutual understanding of confidence
   • it must have been disclosed, or threatened to be disclosed, without authority, and
   • unauthorised disclosure of the information has or will cause detriment.[10]
5. The applicant makes submissions regarding the ability of this exemption to apply to business information, given the existence of ss 47 and 47G.[11] I do not accept that Parliament intended to exclude certain types of confidences from the operation of s 45. Rather, s 45 broadly protects all disclosures which constitute a common law or equitable breach of confidence in circumstances where the five cumulative criteria above are met.

Whether the information is specifically identified

1. The applicant submits that at common law, a cause of action for breaching confidentiality requires the plaintiff to identify with a level of particularity, not merely in global terms, the information alleged to be confidential.
2. Based on my consideration of the material that remains at issue in Documents 29, 31, 37, 38, 39 and 42, it is apparent that the material at issue comprises information that was prepared by UQ as the lead institution in both grant applications. Specifically, detailed grant proposals, responses to requests for further information and proposed budgets for research costs.
3. Accordingly, I am satisfied that the information at issue is specifically identified.

Whether the information possesses the necessary quality of confidentiality

1. The FOI Guidelines relevantly explain that information possesses the necessary quality of confidentiality if it is secret or only known to a limited group. Information that is common knowledge or in the public domain would not have the necessary quality of confidentiality.[12] In Coco v A N Clark (Engineers) Ltd [1969] RPC 41, Megarry J found that no matter how secret the information is, there can be no binding obligation of confidence if the information is disclosed in public or communicated in other circumstances which negate any duty to keep the information confidential.[13]
2. The Department contends that information provided through the grants process attracts the quality of confidentiality. It points out the Grant Opportunity Guidelines (Guidelines), provide that information exchanged during such processes attract confidentiality.[14]
3. While the Department notes the applicant correctly observes that the Guidelines also provide that information may be released through the freedom of information process, the Department submits this statement within the Guidelines does not mean that the material does not attract the quality of confidentiality. This is because the FOI Act expressly provides for the exemption of confidential information.
4. In response to the Department's courtesy consultation, the NHMRC confirmed that the application material is considered in a confidential peer review process:
   • Confidentiality over the grant application assessment process is reflected in the NHMRC's Principles of Peer Review.[15]
   • Participants respect that confidentiality is important to the fairness and robustness of peer review.
5. The applicant submits that the Department has misconstrued what a quality of confidence is. It goes to the type of information and whether information of that type is duly confidential. Domain knowledge, or general knowhow in the vaccine world, is not information that has a quality of confidence, no matter how it is transmitted or any mutual obligations. The applicant also queries how material at issue can possess the necessary quality of confidence when the vaccine development was abandoned.
6. In response to the OAIC's request for updated submissions of 28 February 2025, as above, the Department consulted further with UQ. UQ submits that the material at issue continues to have commercial value which may be diminished if released:
   • The material at issue reveals details about the platform technology that was to be implemented in relation to the vaccine and the methods, practices and systems the investigators were going to apply in their trials.
   • While development of the vaccine was ultimately abandoned, the information remains valuable as the underlying processes could be used by the Investigators or UQ in future endeavours.
7. After reviewing an unredacted copy of the material at issue, I agree that the majority of the material possesses the necessary quality of confidence and has not been widely distributed or disclosed.
8. However, I do not accept that the material at pages 2-3 of Document 29 and at page 3 of Document 39, maintains the necessary quality of confidence. This material is very similar to other material that the Department no longer maintains is exempt under s 45 of the FOI Act. I also do not accept that the total proposed salary figure at page 26 of Document 29 maintains the necessary quality of confidence, as it is similar to other aggregate budget figures that the Department no longer maintains are exempt under s 45 of the FOI Act.

Whether the information was communicated and received on the basis of a mutual understanding of confidence

1. The Department submits that the material at issue was communicated on the basis of a mutual understanding of confidence between the Department and the third parties concerned.
2. The Department submits that this mutual understanding is supported by section 12.2 of the Guidelines. In particular, the application material, including Internal Assessment Committee discussion of application material, is provided to and received by the NHMRC in confidence. In its response to the Department's courtesy consultation, NHMRC confirmed that application material including Internal Assessment Committee discussion of application material, is provided to and received by NHMRC in confidence. This is also supported by the consultation with UQ, who contend they provided the information in their grant application to the NHMRC in confidence.

1. The applicant submits, in summary:
   • The MRFF is a $20 billion public fund that takes applications, assesses those applications, awards and conducts the research in secret.
   • Other large public funders of medical research consider most grant-related information, in the application or in the post-award phase, public information and once an award is made, it is subject to possible release.
   • The Guidelines and any other agreement made by an official must yield to the statute (the FOI Act). For example, the Guidelines provide for disclosure where required by law (including under the FOI Act, in response to an FOI request).
2. From my consideration of the material at issue and the parties' submissions, I am satisfied that the material that remains at issue within Documents 29, 31, 37, 38 and 42 was provided to and received by the NHMRC in confidence.
3. While the FOI Act creates a right of access to documents in the possession of agencies,[16] and the applicant is correct in that the FOI Act is a law which requires the release of government held information, that right is limited by the exemptions and conditional exemptions that are set out in the FOI Act. The breach of confidence exemption within s 45 of the FOI Act is one of those limitations, and where it is established, the FOI Act provides that agencies are not required to give access to the document.[17]
4. Accordingly, I accept that the material at issue within Documents 29, 31, 37, 38 and 42 was communicated to and received by the NHMRC on the basis of a mutual understanding of confidence.

Whether disclosure of the information would be unauthorised

1. The Department submits that UQ have not consented to the material at issue being disclosed.
2. I accept that UQ has not consented to the release of the material that remains at issue contained in Documents 29, 31, 37, 38 and 42. Accordingly, I am satisfied that disclosure of the material would be unauthorised.

Whether disclosure of the information would cause detriment to the person who provided the information

1. The Department contends that disclosure of the material at issue would cause detriment to UQ, the NHMRC and the Department. Disclosure would also undermine industry confidence in the confidentiality of third party interactions with the NHMRC and the Department.
2. Having regard to the nature of the material at issue, I consider that disclosure would reveal the factors, considerations and reasoning upon which the valuation was based. There is a reasonable likelihood that third parties such as the competitors of UQ could use this information for their own benefit.
3. On this basis, I find that disclosure of the material at issue in Documents 29, 31, 37, 38 and 42 would be detrimental to UQ.

1. For the reasons set out above, I am satisfied that:
   • The material at issue within Documents 31, 37, 38 and 42 is exempt under s 45 of the FOI Act.
   • The material at issue within Document 29 is exempt under s 45 of the FOI Act, except for the material at pages 2-3 and 26, which does not possess the requisite quality of confidence and is therefore not exempt under s 45 of the FOI Act.
   • The material at page 3 of Document 39 is not exempt under s 45 of the FOI Act, as the material does not possess the requisite quality of confidence.

Documents disclosing commercially valuable information (s 47(1)(b))

1. The Department maintains that the same material that is subject to the exemption in s 45 of the FOI Act,[18] is also subject to the exemption in s 47(1)(b) of the FOI Act. To the extent I have decided this material is exempt under s 45 of the FOI Act, I need not also consider whether it is exempt under s 47(1)(b) of the FOI Act.
2. However in relation to the material I have found is not exempt under s 45 of FOI Act, I must now consider whether it is exempt under s 47(1)(b) of the FOI Act.
3. A document will be exempt under s 47(1)(b) of the FOI Act if its disclosure would reveal information that has commercial value that would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.
4. The Department submits that through further consultation with UQ, UQ have advised that the material at issue continues to have commercial value which may be diminished if released. In summary, the Department says:
   • The documents reveal details about the platform technology that was to be implemented in relation to the vaccine and the methods, practices and systems that the investigators were going to apply in their trials.
   • While development of the vaccine was ultimately abandoned, the information remains valuable as the underlying processes could be used by the investigators or UQ in future endeavours.
   • This is supported by the decision in 'GO' and National Health and Medical Research Council [2015] AICmr 56 ('GO'), where the disclosure of information relating to a grant was found to comprise an investigator's business and professional affairs (s 47G). In refusing access to the grant information, the Acting Australian Information Commissioner found at that the 'the long timeline associated with medical research requires that the professional interests of the individual investigators be given substantial weight.'[19]
5. The applicant submits that the Department has not met the burden to establish the conditional exemption has been met. The grant applications are in effect 'marketing pitches'. Once the grant award had occurred, release of the information could cause little harm, particularly for the successful grant applicant.

1. After reviewing an unredacted copy of Documents 29 and 39 and the parties' submissions, I am not persuaded that the relevant material is commercially valuable. This is because, as above, I find this material is very similar to other material that the Department no longer contends is exempt.

1. I not satisfied that the material at pages 2-3 of Document 29 and at page 3 of Document 39 is exempt under s 47(1)(b) of the FOI Act.

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

1. The Department maintains that Document 36 is conditionally exempt in part under s 47E(d) of the FOI Act, in respect of the names and position titles of NHMRC staff who are members of the Internal Assessment Committee. This committee was convened to review applications against the assessment criteria for the 2020 COVID-19 Vaccine Research Grant Opportunity.
2. 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)).
3. The Department submits, in summary:
   • The NHMRC have advised that releasing the assessor names and details, has the potential to destroy or diminish the credibility and competitiveness of NHMRC processes, including NHMRC assessment/peer review, and funding outcomes. The proper and efficient conduct of the NHMRC granting process relies on the assessor's and grant applicant's trust in the robustness and integrity of the process.
   • The grant assessment process is integral to the NHMRC's health and medical research funding decisions. Assessors and those invited to be assessors understand and expect that their involvement, including their names/details and provision of their assessment of a grant application, is confidential. Disclosure of individual assessor details and their assessment of grant applications could reasonably be expected to jeopardise NHMRC's granting processes by restricting future assessors' willingness to be involved. This is supported by the decision in 'GO'.
4. The applicant submits:
   • People in medical research are very used to peer review. Confidence only comes when there is confidence in the peer review system itself.
   • If reviewers are not prepared to put their name to the review outcomes then their input and views should not be relied on. It is transparency over who the reviewers are and their collective advice that gets better results and assists to remove any bias.
   • The Department does not provide any evidence as to how disclosing the names of assessors will result in medical researchers not putting their names forward. The threshold test is a 'substantial adverse effect' and not a mere potential effect.

1. In 'GO', the Acting Australian Information Commissioner considered the disclosure of the names and identifying details of external assessors in medical research grant processes. In that matter, the Commissioner found that releasing this material could undermine the system of peer review of NHMRC grant applications. This is because giving access to this material could reasonably be expected to reduce the willingness of external assessors to provide frank assessments. Removing anonymity would also reduce the number of sufficiently qualified assessors who would make themselves available for this purpose.
2. However, I find that the facts of the matter before me are distinguishable from those of the matter before the Acting Commissioner in 'GO'. Specifically, it is not the names and identifying details of external assessors that are at issue, it is rather the names of internal NHMRC assessors that are at issue - the NHMRC staff who formed the Internal Assessment Committee.
3. I therefore do not accept the Department's submissions that releasing the names of these internal assessors would reduce their willingness to provide full and frank assessments and reduce the number of sufficiently qualified internal assessors who would be available for this purpose.

1. I am not satisfied that the material at issue within Document 36 is conditionally exempt under s 47E(d) of the FOI Act. However, the Department alternatively submits this material is conditionally exempt under s 47F of the FOI Act which will consider below.

1. The Department maintains that parts of Documents 29, 36, 37, 39 and 40 are conditionally exempt under s 47F of the FOI Act. As I have found Document 37 is exempt under s 45 above, I do not need to consider it under s 47F of the FOI Act.
2. The material at issue will be conditionally exempt if it contains 'personal information' and disclosure would be 'unreasonable' (s 47F(1)).
3. The Department submits, in summary:
   • Information within Document 29 comprises the medical information in relation of an investigator. Disclosure of this information is likely to cause distress to that individual.
   • The salary budget summary in Document 29 contains the proposed remuneration of individuals working on the project as well as the justification for the remuneration. While in some cases the salary is provided for a position, the Department contends that it will be readily apparent to connect a position to an individual. Disclosure of this information is likely to cause distress to those individuals.
   • The release of the identities of the three members of the committee in Document 36 is likely to cause significant stress to those persons. The placing of the personal information of individuals who work for a government department into the public domain has the potential to place those individuals at risk of harassment, abuse, threats and intimidation. This would be detrimental to the individuals concerned, and potentially also their families. Mitigating this risk is even more important with the prevalence of social media and technology allowing individuals to be more easily identifiable and contactable in online environments.
   • The signatures and contact information of the applicants in Document 39 should be conditionally exempt pursuant to section 47F of the FOI Act.
   • Document 40 contains a third party's signature and this information should be redacted under s 47F.
4. The applicant rejects the Department's contention that a name and its inclusion in a grant or on a review panel is private information.

Whether the material at issue contains personal information

1. 'Personal information' under the FOI Act has the same meaning as the equivalent term in the Privacy Act 1988.[20] That definition is set out in Annexure A.
2. The material at issue in Document 29 comprises the personal leave and individual salary information of members of the research team. The material at issue in 36, 39 and 40, comprises the names, direct telephone numbers, direct email addresses and signatures of Departmental or NHMRC staff.
3. I find that this material at issue comprises 'personal information' for the purposes of s 47F(1) of the FOI Act.
4. However, a group email address is also redacted in Document 39. I find that the group email address is not personal information, as it is not information about an identifiable individual. I also find that the group email address is publicly available.

Whether disclosure would involve an unreasonable disclosure of personal information

1. I have examined an unedited and unredacted copy of the material at issue, as well as the parties' submissions. I have considered the mandatory factors in s 47F(2) of the FOI Act as well as the other relevant factors below.
2. Having weighed the relevant factors, I find that the following personal information would be unreasonable to disclose:
   • the personal leave and individual salary information of members of the research team in Document 29, and
   • the signatures and mobile telephone number in Documents 39 and 40.
3. The nature of this personal information is such that its release is likely to significantly impact the individuals in question.
4. However, I find that it would not be unreasonable to disclose:
   • the names of the NHMRC Internal Assessment Committee members, and
   • the email addresses in Document 39 and the telephone number at page 21 of Document 39.
5. I do not accept the Department's submissions in relation to the identities of the three NHMRC staff members of the Internal Assessment Committee in Document 36, as the Department has provided no evidence in support of its contentions that release could lead to harassment, abuse, threats and intimidation. Also, the personal information within Document 39 is publicly available. It is therefore difficult to understand how the release of this information to the applicant at this time, would be unreasonable.

1. I am satisfied that the personal leave and individual salary information of members of the research team in Document 29 and the signatures and mobile telephone number in Documents 39 and 40 are conditionally exempt under s 47F of the FOI Act.
2. The names of the NHMRC Internal Assessment Committee members in Document 36, the direct email addresses in Document 39 and the telephone number at page 21 of that document are not conditionally exempt under s 47F of the FOI Act.

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

1. Having found the personal leave and individual salary information of members of the research team and the signatures and mobile telephone number to be conditionally exempt under s 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 this conditionally exempt material at this time.
2. The requirements of the public interest test are set out at Annexure A. I have considered the relevant mandatory factors listed in s 11B(3) of the FOI Act. I have not considered the irrelevant factors as set out in s 11B(4) of the FOI Act.[21] In considering the public interest, I have had regard to the parties' submissions.
3. The Department submits that the public interest in disclosing the material at issue is limited, whereas the public interest in upholding the right to privacy of the relevant individuals is greater.
4. The applicant generally submits that the public interest in this matter is significant. The review process is intended to facilitate the commitment of taxpayers money and the FOI Act itself specifically identifies the promotion of effective oversight of public expenditure as a public interest factor (s 11B(3)(c)).
5. While release of the personal information throughout the documents at issue 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 parties' 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 [70]-[72]). I accept the Department's contention that the public interest in upholding the right to privacy of the relevant individuals is greater. I attribute significant weight to this factor against disclosure.
6. On balance, I consider the factor against disclosure of the personal information outweighs the factor favouring disclosure, which I have given minimal weight.

1. For the above reasons, I consider the release of the conditionally exempt material under s 47F of the FOI Act in Documents 29, 39 and 40 would be contrary to the public interest.

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

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Section 22 of the FOI Act authorises an agency to prepare and to give an applicant access to an edited copy of a document if:

• an agency 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.[22]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unauthorised disclosure or threatened disclosure

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

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

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

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

The Administrative Appeals Tribunal applied this element in numerous cases, but whether it must be established is uncertain. The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused. Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.[23]

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

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

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

• whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
• whether the information confers a competitive advantage on the agency or person to whom it relates - for example, if it lowers the cost of production or allows access to markets not available to competitors
• whether a genuine 'arm's-length' buyer would be prepared to pay to obtain that information
• whether the information is still current or out of date (out of date information may no longer have any value)
• whether disclosing the information would reduce the value of a business operation or commercial activity - reflected, perhaps, in a lower share price.[24]

The second requirement of s 47(1)(b) - that it could reasonably be expected that disclosure of the information would destroy or diminish its value - must be established separately by satisfactory evidence. It should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known. Nor is it sufficient to establish that an agency or person would be adversely affected by disclosure; for example, by encountering criticism or embarrassment. It must be established that the disclosure would destroy or diminish the commercial value of the information.[25]

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[26] and in IC review decisions,[27] 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)).[28]

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. [29]

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.[30]

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,[31] 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'.[32]

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.[33]

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.[34]

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.[35]

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.[36]

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

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

Making a complaint to the Commonwealth Ombudsman

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

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

[1] Refer Department's submissions dated 29 May 2025.

[3] Sections 11A, 22, 45, 47(1)(b), 47E(d) and 47F as set out in Annexure A.

[4] 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).

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

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

[11] In submissions dated 30 June 2024, the applicant refers to the Freedom of Information Bill 1981,which states that s 45 is intended to protect confidential relationships which would not be within the specific protection afforded by such clauses as personal privacy (now 47F) and business confidences (now s47G). The applicant submits that Parliament has made it clear that business information is ultimately to be assessed by reference to the public interest, as is the case with s 47G.

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

[14] Section 12.2 of the Grant Opportunity Guidelines.

[15] Refer Principles of Peer Review 2013 - Principle 6, Confidentiality.

[18] Apart from the total proposed salary figure in Document 29, which the Department maintains is exempt under only s 45 of the FOI Act.

[19] 'GO' and National Health and Medical Research Council [2015] AICmr 56 (21 August 2015) at [41].

[20] Privacy Act 1988 s 6(1) (definition of 'personal information').

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

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

[24] FOI Guidelines at [5.235] (footnotes omitted).

[25] FOI Guidelines at [5.237] (footnotes omitted).

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

[27] 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.

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

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

[31] 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.

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

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

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