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Recent Cases: Commonwealth

AHZ and the Australian Securities and Investments Commission (No. 2) (Freedom of Information) [2024] AICmr 47 (4 March 2024)

Facts

The Australian Securities and Investments Commission (“ASIC”) regulates ‘AIA’, an Australian stockbroking company.  On 26 July 2019, ‘AHZ’ (“applicant”) applied to ASIC for documents created or received between 1 February 2015 and 30 December 2015 relating to license conditions imposed on ‘AIA’s financial services license in 2015 or consideration of other regulatory action in respect of ‘AIA’.  The applicant later revised the request so that it only sought internal summaries, briefing notes, memos and strategy papers. 

 

ASIC identified 5 documents within the scope of the request.  It refused access in full to all 5 documents, relying on ss 45, 47C, 47E(d), 47F, 47G(1)(a) and 47G(1)(b). 

 

The applicant sought internal review, advising that they did not seek personal information that was not already public. 

 

On 22 October 2019, ASIC varied its original decision, relying on ss 45, 47C, 47G(1)(a), and 47G(1)(b), and using s 22 to delete personal information previously deleted under s 47F. 

The applicant sought IC review of ASIC’s reliance on ss 45, 47C, 47G(1)(a) and 47G(1)(b). 

 

Reasoning 

 

Documents received in confidence exemption – s 45

 

The Commissioner confirmed that a document would be exempt under s 45 if its disclosure would found an action by a person (not an agency of the Commonwealth) for breach of confidence.  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.  Confidentiality is preserved by the FOI Act where confidentiality would be actionable at common law or in equity.  The Commissioner proceeded to discuss the FOI Guidelines which explain that for s 45 to apply, 5 criteria must be made out: the information must be specifically identified, have the necessary quality of confidentiality, have been communicated and received on the basis of a mutual understanding of confidence, have been disclosed or threatened to be disclosed without authority, and unauthorised disclosure has or would cause detriment. 

 

All five criterion were made out.  The information was specifically identified. 

 

The information bore the necessary quality of confidentiality, as it was not publicly available. 

 

The information was communicated and received with a mutual understanding of confidence.  ASIC cited various statutory provisions that require confidentiality, the nature of the information was inherently confidential and some of the information was expressly labelled as confidential which were accepted by the Commissioner as establishing this aspect of the exemption claim. 

 

Disclosure of the documents would have been unreasonable as ‘AIA’ had not consented to its disclosure.  Additionally, s 127 of the ASIC Act applied.  So while acknowledging the age of the information as a factor in whether disclosure was unreasonable, the Commissioner was satisfied that disclosure of the documents could have given rise to some detriment to ‘AIA’ and ASIC. 

 

Deliberative processes exemption – s 47C

 

The Commissioner was satisfied that the relevant parts of the documents were conditionally exempt under s 47C.  The Commissioner accepted ASIC’s description of the contents as material in the nature of consultation and deliberation that took place for the purposes of the deliberative processes of ASIC.  It was also accepted that no part of the documents deleted under s 47C constituted purely factual or operational information. Given the Commissioner’s findings in relation to ss 45 and 47C, it was not necessary to consider s 47G. 

 

Public Interest test – s 11A(5)

 

In considering the public interest test under s 11A(5), the Commissioner ultimately gave greater weight to the factors favouring disclosure.  It was found that disclosure would have promoted the objects of the FOI Act by notifying the community of government operations and informing debate on a matter of public importance.  The Commissioner acknowledged that disclosure may have had the potential to impede the voluntary and confidential flow of information to ASIC, but found this to be unlikely as in the circumstances, ‘AIA’ was statutorily obligated to provide the information to ASIC following an investigation, making it a matter of public record.  Therefore, disclosure was not found to, on balance, have been contrary to the public interest. 

 

Held

 

Ultimately, the Commissioner set aside ASIC’s decision of 22 October 2019, substituting that:

  • Parts of three documents consisting of material provided by ‘AIA’ to ASIC or the ASIC’s responses to that material, was exempt under s 45
  • While the remaining parts of those three documents were conditionally exempt under s 47C, it was not contrary to the public interest to give the applicant access at that time. 
  • The remaining two documents were conditionally exempt under s 47C. However, it was not contrary to the public interest to give the applicant access at that time. 

 

Patrick and Secretary, Department of the Treasury (Freedom of Information) [2024] AATA 545 (28 March 2024)

Facts

 

Rex Patrick (“applicant”) made a freedom of information request to the Department of the Treasury (“Department”) for access to “any ministerial briefs provided by Treasury to the Treasurer since 23 May 2022 that … go to the Stage 3 Tax Cuts”.  The Department identified one document within the scope of the request and refused access in full pursuant to s 47E(d) of the FOI Act.  However, in this review, the Department relied on the exemption under s 47C of the FOI Act.

 

Reasoning

 

Deliberative processes – s 47C

The Tribunal considered whether the document contained advice or would disclose deliberative matter.  It held that the document did not contain advice, which meant that the consequences of disclosing the document was less relevant.  However, it held that the document was prepared for the purpose of deliberation with regard to the Stage 3 tax cuts.  Despite the fact that disclosure of the document would not have revealed the actual deliberation, the contents had a sufficient connection to the deliberation so as to fall within the broad operation of s 47C.  Therefore, the document was conditionally exempt under s 47C of the FOI Act. 

 

Public interest test – s 11A(5)

 

The Tribunal held that the factors favouring disclosure significantly outweighed those against disclosure.  Namely, disclosure promoted the objects of the FOI Act, informed debate on a matter of public importance and promoted effective oversight of public expenditure. 

 

The Department’s submission that disclosure would have inhibited the frank and candid advice from public servants in the future was not accepted due to the nature of the document.  It was reiterated that the document did not contain any government deliberations, nor was it an incoming government brief as it did not possess a narrative of advice or commentary.  Further, the Tribunal was not satisfied that disclosure would have had an effect on the accuracy of future Treasury costings or the candour of Treasury officials. 

 

Irrelevant material – s 22

 

The Tribunal identified additional information contained in an email within the document that was irrelevant to the applicant’s request under s 22 of the FOI Act.  This information was redacted.  Access was only granted to pages 1 and 2 of the document. 

 

Held 

 

The decision under review was set aside.  The document was found to be conditionally exempt under s 47C of the FOI Act.  However, at the time, disclosure was not contrary to the public interest.  The applicant was granted access to part of the document.