Recent Cases: Commonwealth
'AXI' and Australian Broadcasting Corporation (Freedom of Information) [2025] AICmr 125 (30 June 2025)
Facts
‘AXI’ (“applicant”) applied to the Australian Broadcasting Commission (“respondent”) for access to various documents including those containing their personal information and/or related to various complaints made to the ABC, names and job titles of ABC staff and documents comprising policies, procedures and the ABC’s administrative decision-making on various issues.
The respondent did not make a decision within the statutory period, therefore making a deemed access refusal decision.
The applicant applied to the Office Australian Information Commissioner (“Commissioner”) for review. The respondent subsequently made a purported decision to grant access to some documents pertaining to editorial policies and editorial complaints handling procedures, but refused access to other documents in full on the basis that the ABC is exempt from the FOI Act in relation to its program material under s 7(2) of the FOI Act. It also claimed conditional exemptions ss 47E(c) and 47E(d) in relation to names and job titles of its employees. As the decision was a deemed access refusal, the Commissioner took the purported decision as submissions to the Commissioner. The applicant confirmed that it wished to proceed with the review, including review of the adequacy of searches under s 24A.
Reasoning
Whether reasonable steps taken to find documents – s 24A
The Commissioner accepted the respondent’s evidence of searches, including the databases searched, keywords used and variations tested in searches. The Commissioner did not accept the applicant’s claim that a letter from the respondent proved that there was another document in existence that was not provided, as no such letter was submitted for evidence. Therefore, the Commissioner was satisfied that the respondent’s searches were thorough and reasonable. The respondent had taken all reasonable steps to locate relevant documents and further documents could not be found or did not exist per s 24A.
Whether the documents comprised the respondent’s program material – s 7(2)
The Commissioner considered the ambit of s 7(2) to the respondent in relation to its program material and its datacasting content. The Commissioner considered whether the document could properly be characterised as “program material”; and if it could not, could it be properly characterised as a document ‘in relation to ‘ program material in the sense that there was at least a reasonably direct relationship or connection between the document and another document which is ‘program material’, being a relationship or connection, that is not indirect, remote or tenuous?
The Commissioner found that most of the documents did not comprise program material. However, it was satisfied under s 7(2) that the documents related to program material, as the complaints to which the documents related quoted directly from the program material and concerned the substantive content of the program material. Further, the documents included discussions regarding the content of the respondent’s program material together with the complaints. In coming to this finding, the Commissioner rejected the applicant’s submission that documents which were not made publicly available through the respondent’s broadcasted programs did not constitute ‘program material’. The Commissioner clarified that if the applicant’s submission was accepted, the exemption in s 7(2) would have served no meaningful purpose, as it would only apply to publicly broadcasted material. Therefore, the Commissioner was satisfied that the documents related to the respondent’s program material, meaning that the respondent was exempt from the operation of the FOI Act with respect to the documents under s 7(2).
Decision
The Commissioner affirmed the respondent’s deemed access refusal decision. It was not necessary to consider ss 47E(c) or 47F as the FOI Act did not apply to the documents.
Doshi and Secretary, Department of Home Affairs (Freedom of Information) [2025] ARTA 805 (24 June 2025)
Facts
Mr Tom Doshi (“applicant”) applied to the Department of Home Affairs (“Department”) for access to documents related to the decision by the Minister to cancel his visa. The Department identified 7 relevant documents, with access to six of these denied under ss 33(a)(iii) and (b), 37(1)(a), 37(2)(b), 38 and 47E(d), as well as s 22. One document was disclosed.
The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review, in which the Commissioner affirmed the decision. The applicant applied to the Administrative Review Tribunal (“Tribunal”) for review of the Commissioner’s decision. In addition to the exemption claims, the Tribunal also determined whether the deleted material was irrelevant under s 22 of the FOI Act.
Reasoning
Documents affecting international relations – s 33(a)(iii) and (b)
The Tribunal accepted the Department’s evidence that disclosure of parts of some documents would have caused damage to Australia’s international relations by disclosing sensitive and confidential information obtained in diplomatic communications with Albania. It accepted that the information was provided on a confidential basis and disclosure would have breached Albania’s trust and damaged Australia’s diplomatic relationship with Albania.
Documents relating to law enforcement – ss 37(1)(a) and 37(2)(b)
The Tribunal considered the three types of prejudice that were alleged to have arisen if parts of documents were disclosed comprising: prejudice to the conduct of an investigation of a breach or possible breach of the law; to the enforcement or proper administration of the law in a particular instance; to lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law. The Tribunal accepted that an investigation relating to the character test under the Migration Act 1958 (Cth) constituted enforcement or proper administration of the law under s 37(1)(a). It also accepted the Department’s evidence that the investigation was ongoing and, even though some of the information was 10 years old, disclosure could have affected the investigation. The Tribunal found that prejudice to the ongoing investigation of the applicant’s character test would have arisen if the material was disclosed meaning that there would be a prejudice to the enforcement or proper administration of the law for s 37(1)(a).
The evidence in support of s 37(2)(b) was disclosed in a closed session, with the Tribunal being satisfied that the Department had satisfied both elements of s 37(2)(b). Disclosure of the documents would, or could have reasonably been expected to, disclose certain lawful methods or procedures, which would or would be reasonably likely to prejudice the effectiveness of those methods or procedures.
Documents to which secrecy provisions apply – s 38
Documents marked “PROTECTED” were accepted as expressing a condition that the document be treated as confidential information. The Tribunal differentiated this expectation from the use of a standard email disclaimer or warning that the communication may be confidential, which would not necessarily be so accepted. The Tribunal also considered a memorandum of understanding between the Respondent and Federal Police as to protecting any confidential information from unauthorised access or disclosure. That memorandum included a broad definition of confidential information. The cumulative effect of the evidence before the Tribunal was to satisfy s 503A of the Migration Act, which stated that “PROTECTED” information was communicated on the condition that it was to be treated as confidential information. Another document included the label ‘UNCLASSIFIED’, which the Tribunal clarified was not determinative in establishing whether a document was confidential or not. However, the Tribunal was satisfied by the contents that the relevant material was exempt under s 38, as the document contained confidential information as set out in the memorandum of understanding.
Effect on agency operations – 47E(d)
Even though all of the relevant material had already been held to be exempt under other exemption provisions, the Tribunal highlighted that the arguments accepted by the Tribunal for the ss 37(1)(a) and (2)(b) exemptions were also applicable to s 47E(d). Namely, disclosure would have prejudiced an ongoing investigation and disclosed lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law. The Tribunal held that the public interest against disclosure outweighed the public interest favouring disclosure, as revealing the Department’s methods and procedures could have prejudiced their ability to perform their functions under the Migration Act. Therefore, the material was exempt under s 47E(d).
Decision
The Tribunal set aside the Commissioner’s decision, substituting the decision that documents were exempt under ss 33(a)(ii), 37(1)(a), 37(2)(b), 38 and 47E(d) of the FOI Act. Further, the Tribunal accepted the redactions made under s 22 as being appropriate and justified as the material in the documents in issue did not relate to the applicant.