Recent Cases: Commonwealth
'ANT' and Department of Home Affairs (Freedom of Information) [2024] AICmr 201 (18 September 2024)
Facts
‘ANT’ (“applicant”) applied to the Department of Home Affairs (“Department”) for access to a project brief and interim and final reports related to a review of mental health services in Australian immigration detention. The Department refused access, relying on exemptions under ss 47E(d), 47C, and one of the documents being irrelevant under s 22. The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review.
Reasoning
Whether material was irrelevant to the request – s 22
The Commissioner confirmed the Department’s view that the attachment to the project brief was irrelevant under s 22. The Commissioner considered the terms of the request and was not satisfied that the attachment was ‘a project brief’ or another document referenced in the applicant’s request.
Certain operation of agencies exemption – s 47E(d)
The Commissioner was not satisfied that the documents were conditionally exempt under s 47E(d).
The interim and final report included an assessment of the services provided by current service providers, but they did not directly relate to the Department’s procurement activities for detention services. Consequently, the Commissioner found difficulty in identifying how disclosure could have reasonably been expected to jeopardise the integrity of the Department’s current procurement activities for detention services.
The Commissioner noted that disclosure would have given all tenderers access to the same information, thereby leading to a more transparent and competitive tendering process. Therefore, the documents were not conditionally exempt under s 47E(d).
Deliberative processes exemption – 47C
The Commissioner was satisfied that the documents contained deliberative material, as they were comprised of opinions, advice and recommendations. These were provided to address operational issues associated with contracted services in immigration detention. Therefore, the information was conditionally exempt under s 47C, as it consisted of consultation undertaken in to course of a deliberative process.
Whether access would have been contrary to the public interest – s 11A(5)
The Commissioner gave significant weight to the factors favouring disclosure. Namely, disclosure would have enhanced public scrutiny in government decision-making, promoted the objects of the FOI Act, provided insight into the mental health impacts of immigration detention and the public expenditure of the Department on immigration detention, and informed debate on a matter of public importance.
The Commissioner was not persuaded that disclosure would reasonably be expected to compromise the Department’s procurement processes to the extent claimed by the Department. Therefore, it was held that disclosure was not contrary to the public interest.
Decision
The Commissioner set aside the Department’s decision. It was held that the attachment to the project brief was irrelevant under s 22, whereas the project brief and both interim and final reports were not exempt under s 47E(d), but conditionally exempt under s 47C. However, as disclosure was not contrary to the public interest at that time, the documents were not exempt.
Tombazos; Chief Executive Officer, Australian Research Council and (Freedom of information) [2024] AATA 3012 (23 August 2024)
Facts
Christian Tombazos (“respondent”) applied to the Australian Research Council (“applicant”) for access to documents, including a spreadsheet detailing 1064 unsuccessful applications to the applicant between 2001 and 2017 in the area of economics. Part of the spreadsheet had been disclosed to the respondent.
This application was reviewed by the Office of the Australian Information Commissioner, in which it was held that the spreadsheet was not exempt from disclosure under s 47F and s 47G of the FOI Act on public interest grounds.
The applicant applied to the Administrative Appeals Tribunal (“Tribunal”) for review, claiming exemptions under ss 45, 47F and 47G of the FOI Act.
Reasoning
Documents containing material obtained in confidence – s 45
In line with the first criterion of s 45, it was not contentious that the information was able to be identified with specificity.
The Tribunal accepted the applicant’s documentary evidence that supported the existence of a mutual understanding of confidentiality between the applicant and the relevant universities and researchers. Despite the evidence only dating back to 2003, the Tribunal accepted this evidence to cover 1 July 2001 onwards. The Tribunal also accepted the applicant’s evidence of the deposition of a professor, as well as a significant number of grant applicants that spoke to the mutual understanding of confidentiality. Therefore, the second and third criterion were made out.
The Tribunal held that the fourth criterion was made out, as the investigators, whose information had been redacted in the spreadsheet, had not given authority for their information to be disclosed.
Finally, on the question of whether or not disclosure would have caused detriment, The Tribunal held that this criterion was made out. The Tribunal noted that it was only necessary for the Tribunal to be satisfied that disclosure of the information would have founded an action for breach of confidence. It was held that the concerns raised by the investigators and universities provided sufficient grounds for finding of detriment.
Therefore, the relevant part of the spreadsheet in dispute was exempt under s 45 of the FOI Act.
Decision
The Tribunal set aside the reviewable decision, finding that the relevant information was exempt under s 45.