Recent Cases: Commonwealth

Kern; Chief Executive Officer, Services Australia and (Freedom of Information) [2025] ARTA 2677 (10 December 2025)

Facts

Anatoly Kern (“respondent”) requested access to files from Services Australia (“Agency”), seeking all records kept on the file and requested to inspect documents that had third party correspondence.  The Agency refused access to the four documents it had identified as relevant, and this decision was considered by the Office of the Australian Information Commissioner (“Commissioner”).  The Administrative Review Tribunal (“Tribunal”) considered the exemption claim over one document with two redacted internal positional email addresses.  The Agency maintained the redactions under s 47E(d) and appealed the Commissioner’s decision to disclose the information .   

Held 

The Tribunal set aside the Commissioner’s decision in relation to the s 47E(d), affirming the Agency’s view that the positional mailboxes were conditionally exempt and disclosure would be contrary to the public interest. 

Reasoning 

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

The Agency argued that the internal positional mailbox was shared between multiple staff members and used only for internal purposes. 

The Tribunal considered the Agency’s   concerns that disclosing email addresses established purely for internal purposes would be likely to undermine the operations of the Agency.  The concerns included risks of misdirected communications and increased risks of privacy breaches.  Multiple examples were provided to the Tribunal, including: influx of customer communications because the positional mailboxes were not designed for communications with the public, difficulty authenticating the identity of a customer, undermining of the workload management system in place which involves handing more than 170 million emails sent each year. 

The Agency also expressed concern about the respondent’s anticipated behaviour, citing a previous instance of targeted behaviour to emails and certain mailboxes. 

The concerns with cybersecurity were raised following the potential for sensitive information held by the Agency to be obtained with potential exposure to ‘spear phishing attacks’ that could result in unauthorised access to the Agency’s systems and unauthorised access to that sensitive information. 

The Tribunal agreed that the information was conditionally exempt and proceeded to consider the public interest in disclosure of the information. 

Public interest – s 11A(5) 

The Tribunal accepted there was some limited public interest in the transparency of the Agency’s architecture of communication mediums but this was given very little weight.  While there would be multiple factors favouring disclosure, the redacted material would not promote the objects of the FOI Act or inform debate on a matter of public importance.  The factors against disclosure were found to strongly outweigh the factors favouring disclosure, and the risk of harm following the potential disclosure of personal information and other privacy risks was a significant weight against disclosure.  The Tribunal agreed that disclosure could reasonably be expected to impact the Agency’s day to day operations by diverting its resources through the need to respond to misdirected correspondence.  Disclosure of the conditionally exempt material under s 47E(d) would be contrary to the public interest. 

'AZF' and Administrative Review Tribunal (Freedom of Information) [2025] AICmr 195 (8 December 2025)

Facts

‘AZF’ (“applicant”) applied for documents in relation to a proceeding heard in the former Administrative Appeals Tribunal (“AAT”).  The documents sought were the recording of a child support review hearing, a copy of the AAT directions and copies of all information submitted by the other party. A deemed refusal decision was taken to have been made by the Administrative Review Tribunal (“Tribunal”) under s 15AC(3) of the FOI Act with decisions made by the Tribunal after the statutory decision making timeframe . 

In making its decision, the Tribunal found 3 types of documents: an audio recording of the hearing, 2 directions made by the AAT and documents submitted by the other party to that hearing.  The Tribunal decided to refuse access to the recording and submitted documents in full under s 46(b) but that the AAT directions should be released in full.  The applicant applied for the Office of the Australian Information Commissioner (“Commissioner”) to review the Tribunal’s decision.  

Held

The Commissioner affirmed the Tribunal’s decision, confirming that the documents were exempt in full under s 46(b) of the FOI Act. 

Reasoning

Where disclosure contrary to an order made or direction given by a Royal Commission, tribunal or other person or body with power to take evidence on oath– s 46(b)

To address the exemption, the Commissioner first found that the Tribunal is a body to which s 46(b) of the FOI Act applies.  Secondly, the Commissioner considered whether the Tribunal had made relevant directions.  This was addressed by reviewing the AAT’s directions made when the AAT reviews were conducted and finalised.  The AAT had made a direction in the child support review and the Commissioner was satisfied that the substance of the AAT’s directions continued to be in effect as a result of the provisions of the Tribunal’s Practice Directions for the Child Support Jurisdiction.  As the applicant had made its request in 2022, the Commissioner was satisfied that the AAT and Tribunal’s directions applied to the applicant’s request. 

The Commissioner finally considered whether the Tribunal’s Practice Directions would prohibit the disclosure of this material for the Child Support Jurisdiction.  The documents included a recording of the AAT hearing and documents provided by the other party which contain another person’s personal information.  As these documents would be prohibited from disclosure they were therefore exempt under s 46(b) of the FOI Act.