Freedom of Information - Whether material in the documents is irrelevant to the request - Whether documents contain deliberative matter prepared for deliberative processes - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982

ss 11A, 22, and 47C

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed decision of the Minister for Finance (the Minister) as varied on 23 December 2024. I substitute my decision as follows:

• the material the Minister no longer maintains is exempt is not exempt
  • the material the Minister found to be irrelevant to the applicant's request under s 22 of the FOI Act in document 6 is irrelevant to the applicant's request
  • the material the Minister found to be irrelevant to the applicant's request under s 22 of the FOI Act in document 8 is relevant to the applicant's request
  • the material the Minister found to be exempt under s 34 of the FOI Act that the applicant has excluded from this review is outside the scope of this review and therefore exempt under s 34 of the FOI Act
  • the material the Minister found to be exempt under s 42 of the FOI Act that the applicant has excluded from this review is outside the scope of this review and therefore exempt under s 42 of the FOI Act
  • the material the Minister found to be conditionally exempt under s 47C of the FOI Act in documents 2, 4, and 9 is conditionally exempt under that provision and it would be contrary to the public interest to release it at this time.
  • the material the Minister found to be conditionally exempt under s 47C of the FOI Act in document 8 is conditionally exempt under that provision but it would not be contrary to the public interest to release it at this time.

1. Within 28 days of this decision: * the Minister 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 exempt or irrelevant material, and * the Minister 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 the public interest test in s11B of the FOI Act to material found to be conditionally exempt under s 47C (deliberative material). It is primarily of interest to the parties in relation to the specific documents sought.

1. On 13 May 2024, the applicant applied to the Minister for access to:

... any formal government correspondence to or from the Minister for Finance that relates to the establishment (including approval of guidelines) of the following grant programs:

Both programs are only available to "a project identified by the Australian Government". I also seek access to any correspondence (including email) that relates to that term or any list of projects identified by the Australian Government.

1. During this Information Commissioner review (IC review) the parties have engaged with each other and this process to resolve and clarify the issues in dispute. I commend them both for their efforts in this regard. The applicant does not contest the Minister's exemption claims in relation to s 34 (Cabinet exemption) and s 42 (legal professional privilege).[1] Accordingly, the issues to be decided in this IC review are:
   • whether certain material is irrelevant, and
   • whether the material that the Minister maintains is conditionally exempt under s 47C is conditionally exempt under that provision, 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)).[2]
2. 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.[3]
3. In making my decision, I have had regard to the following:
   • the Minister's revised decision and reasons for decision of 23 December 2024
   • the documents at issue
   • the FOI Act[4]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[5] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[6] and
   • the parties' submissions.

1. The Minister deleted material from documents 6 and 8 as irrelevant to the scope of the applicant's request. The Minister submitted:
   • document 6 is correspondence responding to a request for approval to establish legislative authority for government spending for particular infrastructure initiatives. It contains information relating to the two programs referred to in the applicant's request and another infrastructure initiative.
   • document 8 consists of advice and recommendations in relation to the amount of, and timing of, funding for the two programs referred to in the applicant's request after the 2022 election. It also contains information relating to another infrastructure initiative.
   • the material in documents 6 and 8 relating to the other infrastructure initiative does not relate to the establishment of the two programs referred to in the applicant's request. Such material is to be reasonably regarded as irrelevant to the applicant's request because it is information on a completely different topic than that requested by the applicant.
2. The applicant submitted that since his request was for correspondence, the effect of the Full Federal Court decision in Bachelard v Australian Federal Police[7] is that once the Minister identified that a piece of correspondence fell within the scope of his FOI request, the whole of the letter should be released.
3. If the applicant's submission in relation to the Bachelard case is correct, there would be no basis upon which to delete material from documents 6 and 8 under s 22 of the FOI Act. Effectively the applicant submits that once a document contains some material relevant to the FOI request, there is no basis for deleting material from that document on the basis that it is irrelevant.
4. I do not agree with the applicant's interpretation of the decision in Bachelard. In my view, insofar as the Bachelard decision deals with s 22 of the FOI Act, it does not preclude a decision maker from finding that a document contains both relevant and irrelevant material. It requires decision makers to carefully consider the terms of the applicant's FOI request. At [281] McDonald J stated:

The point of s 22(1)(a)(ii) is to exclude from documents material that is wholly outside the scope of, and irrelevant to, an access request. It is not to conceal from an FOI applicant information that happens to mention or relate to other topics, that may be incidentally revealed or inferred from parts of the document that contain material that is within the scope of the request and related to the subject matter of the request.

5. I have examined documents 6 and 8, the terms of the applicant's FOI request and had regard to the parties' submissions. In my view, the Minister has construed the applicant's FOI request too narrowly by focussing only on the two programs referred to in the FOI request. The request clearly extends beyond the two programs when it states:

I also seek access to any correspondence (including email) that relates to that term or any list of projects identified by the Australian Government.

6. As the Minister points out, the material in document 8 relates to a different infrastructure initiative, however, it also lists projects under that initiative. I consider that this material is reasonably regarded as relevant to the applicant's request.
7. The material in document 6 also relates to an infrastructure initiative not referred to in the applicant's request. Having examined this material I am satisfied that it is reasonably regarded as irrelevant to the applicant's request. This material does not relate to either of the named programs nor does it relate to the term "a project identified by the Australian Government" or list any projects.

1. Having considered the scope of the request, I find that the material in document 6 is irrelevant to the applicant's request but the material in document 8 is relevant to the request.

1. A document is conditionally exempt under s 47C if its disclosure would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or a Minister or the Government of the Commonwealth.
2. The Minister maintains that material in documents 2, 4, 8, and 9 is deliberative as it consists of advice or recommendations about policy proposals. The applicant generally accepts the material is deliberative, but submits that it would not be contrary to the public interest to disclose it.
3. I have examined the material and I consider it is deliberative as it contains opinion, advice and recommendations about policy proposals in the context of the budget process which is a deliberative process involving the functions of the Finance Minister.

1. I am satisfied that the material is conditionally exempt under s 47C of the FOI Act.

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

1. Having found the material to be conditionally exempt under s 47C of the FOI Act, I am required to consider whether it would be contrary to the public interest to give the applicant access to conditionally exempt material at this time. The requirements of the public interest test are set out at Annexure A. I have considered the relevant mandatory factors listed in s 11B(3) of the FOI Act. I have not considered the irrelevant factors as set out in s 11B(4) of the FOI Act.[8] In considering the public interest, I have had regard to the parties' submissions.
2. The Minister acknowledged that the intention of the FOI Act is to provide for open government and submits that the release of the information in the documents would broadly promote the objects of the FOI Act. The Minister also agreed that the release of the documents would promote oversight of the public expenditure on grant programs.
3. The Minister submitted that on balance the factors against disclosure outweigh these factors. In particular:
   • release of the deliberative matter in documents 2, 4 and 9 would enable people to ascertain that there was legal advice given and the nature of advice provided. This carries an unacceptable risk of harm that the release of this material would waive privilege over the legal advice and this could also adversely impact the delivery of similar programs in future.
   • document 8 sets out deliberations in relation to policy development and Budget development processes. It contains options for achieving policy priorities through the Budget, including strategies about the timing for achieving these priorities.
   • communications between Ministers to inform the recipient about the decisions undertaken or ask for approval to a course of action, are common in the deliberative process of finalising the Budget. These deliberative communications supplement the consideration of policy proposals by the Expenditure Review Committee (ERC) and Cabinet and are as integral to budget processes as the more formal consideration of budget measures by the Cabinet.
   • the correspondence is a core part of the Budget process. It is vital to the proper management of the development of the Budget for Ministers and the Prime Minister to confidentially deliberate the content, funding, and strategy for the Budget and make decisions based on these candid discussions and the information provided to Ministers from agencies. This enables government to be responsive to particular policy issues.
   • In some cases, these communications do not necessarily reflect the final decision made but are part of the steps taken to finalise a decision. They often relate to consideration of options as part of the budget process that are ultimately not accepted by government in the finalisation of the budget.
   • There is a clear public interest in preserving the uninhibited deliberation of such matters at the highest level of government. Without confidentiality of the deliberations to finalise Budget measures there is a real risk that Ministers will be less willing to have discussions
4. The applicant submitted:
   • there is a significant public interest in the release of the material given the objects of the FOI Act and the content of the material
   • it is not appropriate to use the public interest test as an alternative to claims that arise under other exemptions such as legal professional privilege (s42) and cabinet material (s34)
   • s 11B(c) of the FOI Act means the seniority of the Ministers is not relevant and Ministers would be aware that their deliberations could be released under the FOI Act given the length of time the FOI Act has operated.
5. I give significant weight to the following factors in favour of disclosure:
   • release of the material would promote the objects of the FOI Act
   • release of the material would promote oversight of the public expenditure on grant programs.
6. In relation to the material in documents 2, 4 and 9, I do not accept the Minister's submission that waiver of legal privilege by itself is a harm that weighs against disclosure of the material. The correct provision for protecting legally privileged material is s 42 of the FOI Act which is claimed only over one part of the material in document 4. I do, however accept that release of the material could reasonably be expected to adversely impact the delivery of the type of programs dealt with in the material by revealing material that would be harmful. I have given significant weight to this factor due to the harm that would be expected to be caused to the Government's ability to develop and deliver future programs.
7. In relation to the material in document 8, I am not satisfied that the Minister has met their onus to demonstrate that I should give a decision adverse to the applicant. Although the Minister's submissions were lengthy they primarily focussed on protecting all communications between ministers in the context of the budget process. They provided no detail in relation to the public interest factors against disclosure of the particular material in document 8.
8. I do not accept that there is a general public interest against disclosure of correspondence between Ministers during the budget process. To accept the Minister's submission that "there is a clear public interest in preserving the uninhibited deliberation of such matters at the highest level of government" would, in my view, approach consideration of the irrelevant factor specified in s 11B(c) of the FOI Act. This provision specifies that a decision maker must not take into account as a factor against disclosure that the author of the document was ... of high seniority in the agency to which the request ... was made".[9]

1. On balance, in relation to documents 2, 4 and 9 I consider that the public interest factors against disclosure which I have given significant weight, outweigh the factors favouring disclosure.
2. In relation to document 8 I consider that the Minister has not discharged their onus and accordingly the public interest factors in favour of disclosure, which I have given significant weight, outweigh the factors against disclosure.

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.[10]

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

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

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

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

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

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

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

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

Firstly, the decision maker must be satisfied that information within the scope of the request includes deliberative matter. Secondly, if the decision maker is satisfied, they are then required to be satisfied that the deliberative matter was obtained, prepared or recorded in the course of, or for the purposes of, deliberative processes. Thirdly, the decision maker must be satisfied that the deliberative processes were involved in the functions exercised by or intended to be exercised by an Australian Government agency or minister.[11]

Deliberative matter is content that is in the nature of, or relating to either:

• an opinion, advice or recommendation that has been obtained, prepared or recorded or

• a consultation or deliberation that has taken place, in the course of, or for the purposes of, a deliberative process of the government, an agency or minister (s 47C(1)).

'Deliberative matter' does not include operational information or purely factual material (s 47C(2)). 'Operational information' is defined in s 8A and is information that an agency must publish under the Information Publication Scheme (see Part 13 of the FOI Guidelines).[12]

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

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

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

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function (s 47C(3)).[13]

Agencies and ministers should only claim this conditional exemption in clearly applicable circumstances, noting that s 47C is subject to an overriding public interest test that is weighted toward disclosure. Not every document generated or held by a policy area of an agency is 'deliberative' in the sense used in this provision, even if it appears to deal with the development or implementation of a policy. This is reinforced by the language of the FOI Act which describes what does not constitute 'deliberative matter'. A decision maker should ensure that the content of a document strictly conforms with the criteria for identifying 'deliberative matter' prepared or recorded for the purposes of a 'deliberative process' before claiming this conditional exemption (see [6.46] above and [6.59] - [6.58] below).[14]

In relation to assessing 'deliberative matter' the FOI Guidelines explain:

• The presence or absence of particular words or phrases is not a reliable indication of whether a document includes deliberative matter. The agency should assess the substance and content of the document before concluding it includes deliberative matter. Similarly, the format or class of the document, such as a ministerial brief or submission, or the document being a draft version of a later document does not automatically designate the content as deliberative matter.

Material that is not deliberative matter, where not already excluded as operational information, purely factual material or a scientific report, would include: > > • content that is merely descriptive > > • incidental administrative content > > • procedural or day to day content > > • the decision or conclusion reached at the end of the deliberative process > > • matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process.[15]

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

The action of deliberating, in common understanding, involves the weighing up or evaluation of competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. > > It is not enough for the purposes of s 47C(1) that an opinion, advice or recommendation is merely obtained, prepared or recorded; it must be obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes involved in the functions of the agency, minister or government. > > The functions of an agency are usually found in the Administrative Arrangements Orders or the instrument or Act that established the agency. For the purposes of the FOI Act, the functions include both policy making and the processes undertaken in administering or implementing a policy. The functions also extend to the development of policies in respect of matters that arise in the course of administering a program. The non-policy decision making processes required when carrying out agency, ministerial or governmental functions, such as code of conduct investigations, may also be deliberative processes. > > ... > > An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process. However, it is not sufficient that an agency or minister merely has a document in its possession that contains information referring to matters for which the agency or minister has responsibility.[16]

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

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

Where a decision maker finds it difficult to separate the purely factual material from the deliberative matter, both the elements may be exempt. If the 2 elements can be separated, the decision maker should consider giving the applicant a copy with deletions under s 22 to provide access to the purely factual material.[17]

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.[18]

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.[19]

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

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

Making a complaint to the Commonwealth Ombudsman

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

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

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

[1] Except in relation to material in document 4 where the Minister found material was exempt under both s 42 and s 47C.

[2] The Minister found that material in document 4 was exempt under both s 42 and s 47C. As I will find this material is conditionally exempt under s 47C and it would be contrary to the public interest to release it at this time, I do not also need to consider whether it is exempt under s 42.

[4] Sections 11A, 22, 42 and 47C as set out in Annexure A.

[5] 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] [2025] FCAFC 5 (3 February 2025) - para 242 to 284.

[9] In addition, as noted in previous IC review decisions, documents utilised to make decisions at the highest levels of government attract the greatest need for scrutiny, see Rex Patrick and Department of Industry, Science and Resources (Freedom of information) [2024] AICmr 145 (12 July 2024) and Rex Patrick and Department of Industry, Science and Resources (No.2) (Freedom of information) [2024] AICmr 260 (3 December 2024).

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

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

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

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

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

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