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Recent Cases: Commonwealth

Linda Poulton and Department of Climate Change, Energy, the Environment and Water (Freedom of Information) [2025] AICmr 47 

Facts 

 

Linda Poulton (“applicant”) applied to the Department of Climate Change, Energy, the Environment and Water (“Department”) for access to data and communications between the Department and the Tasmanian Government about particular reserves. The Department identified 4 relevant documents, and provided access to 3 of those documents and refused access to one document (“document in dispute”) under ss 47B(a), 47F and 22, deciding that details about departmental staff were irrelevant to the request under s 22. 

 

Following a request for review by the Office of the Australian Information Commissioner (“Commissioner”), the Department made a revised decision, first consulting with the relevant Tasmanian Department (“DNRE”) and inviting it to make submissions about ss 47B(a) and 47F.  The Department’s revised decision was to partially release the document in dispute, with deletions made under ss 47B(a), 47F and 22. 

 

Held 

 

The Commissioner set aside the Department’s decision, substituting that:

  • no information was conditionally exempt under s 47B(a); 
  • the names and contact details of staff were not irrelevant under s 22; 
  • the first names of staff were not conditionally exempt under s 47F; and 
  • the Departmental staff surnames and contact details were conditionally exempt under s 47F, and disclosure would have been contrary to the public interest. 

Reasoning

 

Commonwealth-State relations – s 47B(a) 

 

The Commissioner found that some information withheld on the document in dispute had already been released by DNRE under the Right to Information Act 2009 (Tas) (“Tasmanian Act”).  Accordingly, that material was not exempt as it was already in the public domain. The remaining material had not been released to the public domain  but the Commissioner found that it was  not conditionally exempt, as neither the Department nor DNRE had provided evidence to establish that there was more than a mere risk or chance of the claimed harm of prejudice occurring. 

 

Irrelevant information – s 22

 

The Department deleted the staff names and contact details from the document as irrelevant.  It had sought the applicant’s consent to exclude the information from the request as irrelevant under s 22, and the applicant had not responded. The Commissioner held that the fact that the applicant did not respond was not a sufficient basis for the Department to determine the material as out of scope and therefore irrelevant. 

 

Personal privacy – s 47F

 

The Commissioner was satisfied that the staff names and contact details constituted personal information under s 47F(1). The Commissioner found that disclosure of the first names of Departmental staff would not be unreasonable, as the staff would not be reasonably identifiable by their first names alone. In contrasting, the Commissioner considered that disclosure of surnames and contact details of staff would have been unreasonable, as the information was not well known or publicly available. Further, disclosure could reasonably have been expected to cause detriment and stress to the staff in question, potentially through unwanted contacted. In weighing all relevant factors the Commissioner concluded that disclosure would be unreasonable. Therefore, Departmental staff surnames and contact details were conditionally exempt under s 47F. 

 

Public interest – s 11A(5)

 

Whilst disclosure would have promoted the objects of the FOI Act, and there was a general interest in government-held information being accessible, the Commissioner held that disclosure would have been contrary to the public interest. Disclosure would not have revealed information about government operations, or reasons for a government decision. Further, disclosure would not have enhanced the scrutiny of government decision making in a meaningful way, and it was not related to a matter of public importance. Therefore, the conditionally exempt personal information was exempt. 

Grunbiotics Pty Ltd and Secretary, Department of Health and Aged Care (Freedom of information) [2025] ARTA 167

 

Facts 

 

Grunbiotics Pty Ltd (“applicant”) applied to the First Assistant Secretary, Regulatory Practice and Support Division of the Department of Health and Aged Care (“Department”) for access to six particular classes or categories of documents held by Therapeutic Goods Administration (“TGA”) relating to the product Neurofolin. The Department had made an initial decision, and then a revised decision, which the applicant sought review of by the Office of the Australian Information Commissioner. During the review, the parties had negotiated and decided to set aside the internal review decision which refused access to the sought documents under ss 42 and 47B, meaning that some of the relevant information was deemed to be outside the scope of the FOI request (“reviewable decision”). The reviewable decision upheld certain exemptions in part under ss 42 and 47B. 

 

The applicant applied to the Administrative Review Tribunal (“Tribunal”) for review of the reviewable decision. During the course of the Tribunal’s review, the parties agreed to no longer pursue the s 47B exemption. 

 

Held 

 

The Tribunal affirmed the reviewable decision in finding that legal professional privilege under s 42 applied in full to 27 documents, and in part to 26 documents. 

 

Reasoning

 

Legal professional privilege exemption – s 42

 

The Tribunal found that there was no evidence to substantiate the applicant’s submissions that the s 42 exemption had been improperly claimed in a biased manner by the Department.  The Tribunal accepted the evidence provided by the Department’s witness that the in-house lawyer and policy adviser was acting in her legal capacity, and the Department had required both her legal advice as well as that of external lawyers.  The Tribunal noted the expertise of the Department’s witness  as a senior Australian legal practitioner of more than 30 years standing who acted independently and responsibly in reviewing the documents for legal professional privilege. The applicant did not challenge the Department’s evidence in order to explain the supposed bias. Further, upon careful examination of the documents, the Tribunal was satisfied that this was a legitimate claim for legal professional privilege, as they were clearly confidential communications to and from salaried legal advisers, and external legal providers, created for the purposes of giving and receiving legal advice concerning the subject matter. 

 

The Tribunal did not accept the applicant’s submission that legal professional privilege was not applicable because the in-house lawyer was performing two roles in receiving and sending the documents, with the role in regard to the sought documents being ‘operational’ as opposed to ‘legal’. The Tribunal highlighted that whilst the in-house lawyer had led meetings on several occasions, doing so did not mean that legal professional privilege could not be claimed. The Tribunal accepted  the unchallenged evidence of the Department’s witness that she believed the in-house lawyer was acting in a legal capacity in sending and receiving the communications. Therefore, the Tribunal was satisfied that this was a proper claim for legal professional privilege. 

 

The Tribunal considered whether privilege had been waived for one document, as asserted by the applicant.  The Tribunal noted that the released parts of that document contained no requests for or provisions of legal advice.  Contrastingly, the claimed privileged portions of the document comprised of emails seeking or providing legal advice circulated to the majority of the salaried in-house lawyers of the TGA.  The Tribunal noted that the unconventional manner in which the emails were expressed did not deprive them of confidentiality or the purpose of giving or receiving legal advice.  Therefore, the Tribunal was unable to conclude that release of certain portions of the document constituted an express or implied waiver of any legal professional privilege otherwise contained in the document. 

 

The Tribunal held that there was no evidence to substantiate the applicant’s contention that the legal advice had been used for an improper purpose to enable, conceal, or justify misconduct.  Specifically, the applicant alleged that the improper purpose related to an Order that the Department had made regarding one of the applicant’s products.  The Tribunal highlighted a clear issue of procedural fairness, as none of the Department’s witnesses were cross-examined, meaning that they did not have an opportunity to respond to such serious allegations.  Given the lack of evidence, the Tribunal held that the applicant had not established that the communications were created for an improper purpose.