Recent Cases: Commonwealth
'AZU' and Comcare (Freedom of information) [2026] AICmr 17 (19 February 2026)
Facts
‘AZU’ (“applicant”) applied to Comcare for access to documents relating to its management of a compensation claim. Comcare made a deemed refusal decision under s 15AC.
The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review of the deemed refusal decision. After the Commissioner advised Comcare of the commencement of the review, Comcare made a revised decision identifying 33 documents within the scope of the request. It granted access in full to 15 documents, granted partial access to 17 documents under ss 42 or 47C, refused access in full to one document under s 42 and deleted staff details in the documents at issue as irrelevant under s 22.
Held
The Commissioner set aside Comcare’s revised decision, substituting that the material claimed to be exempt under s 42 was exempt under that provision. Additionally, the material that constituted deliberative material was conditionally exempt under s 47C, disclosure of which would have been contrary to the public interest.
Reasoning
Legal professional privilege – s 42
The Commissioner accepted that the documents claimed to be exempt were exempt under s 42. The documents contained confidential communication between Comcare’s Claims Management Group and in-house lawyers, created for the dominant purpose of seeking and providing independent legal advice about a possible debt waiver. The communications were not routine administrative material, and the in-house lawyers were sufficiently independent for legal professional privilege to apply. The Commissioner held that there was no evidence that the substance of the legal advice had been disclosed to the applicant or otherwise used in a way inconsistent with confidentiality. As a result, the legal professional privilege had not been waived.
Deliberative processes – s 47C
The Commissioner held that most of the material claimed to constitute ‘deliberative matter’ was incidental, administrative, procedural or day-to-day in nature and did not disclose opinions, advice, recommendations, consultations or deliberations in the sense required by s 47C. However, limited material in 2 documents was found to form part of Comcare’s actual decision-making about whether to waive a debt and did not waive a debt and therefore constituted deliberative matter under s 47C(1). This material was held to be conditionally exempt under s 47C.
Public Interest – s 11A(5)
The Commissioner held that disclosure of the conditionally exempt material under s 47C would have been contrary to the public interest under s 11A(5). Although acknowledging that disclosure would have promoted the objects of the FOI Act and allowed the applicant access to their personal information, the Commissioner ultimately gave greater weight to the factors against disclosure. While noting the FOI guidelines’ position that public servants are expected to provide frank advice despite transparency, the Commissioner accepted that, in this case, disclosure of the specific deliberative material would likely inhibit frank internal deliberation in the context of Comcare’s core functions.
'AZV' and Commonwealth Ombudsman (Freedom of information) [2026] AICmr 18 (2 March 2026)
Facts
‘AZV’ (“applicant”) applied to the Commonwealth Ombudsman (“Ombudsman”) for access to a broad range of documents in relation to an investigation conducted by the Ombudsman into the handling of a Public Interest Disclosure (“PID”) by the Department of Home Affairs (“Department”).
The applicant revised the scope of their request to exclude certain information and to specifically request 11 witness statements that they claimed had been provided to the Ombudsman.
The Ombudsman refused the applicant’s request under s 24(1)(b) of the FOI Act. The applicant applied for an internal review, in which the Ombudsman identified 12 documents in response to the applicant’s request and decided to release each document in part, with information redacted on the basis of the conditional exemptions under ss 47E(c), 47E(d) and 47F of the FOI Act.
The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review of the decision made under ss 24A and 47E(d).
Held
The Commissioner affirmed the Ombudsman’s internal review decision, finding that reasonable steps were taken to find relevant documents and 7 documents were conditionally exempt under s 47E(d), the disclosure of which would be contrary to the public interest.
Reasoning
Whether reasonable steps were taken to find documents – s 24A
The Ombudsman provided information to the Commissioner that it did not hold copies of the 11 witness statements. It provided a checklist outlining the circumstances of the searches, the result of which was 6 ‘summary of interview documents’ provided by the Department. The Ombudsman concluded that the witness statements sought were in the possession of the Department.
The Commissioner accepted that the Ombudsman had conducted reasonable searches and had done all that could be reasonably required to find the witness statements if they had been in the Ombudsman’s possession. The Commissioner was satisfied that the Ombudsman had provided a sufficient explanation as to why it did not receive the statements from the Department.
Certain operations of agencies – s 47E(d)
The Commissioner agreed that 8 documents, which had been redacted by the Ombudsman under s 47E(d), comprised of the PID investigation report and attachments, which were the summaries of interviews conducted by the Department.
In considering the application of s 47E(d), the Commissioner was satisfied that the disclosure of this material would impact on the willingness of agencies and individuals to cooperate with Ombudsman investigations, as release would be contrary to the understanding of confidentiality. The Commissioner further noted that the Ombudsman has a unique role in investigating complaints about the handling of PIDs and disclosure would affect the operations of the Ombudsman.
The Commissioner accepted the Ombudsman’s submissions that disclosure would discourage complainants from seeking assistance and result in agencies or members of the public being less forthcoming about providing full and frank information if the information received by the Ombudsman was not treated confidentially. The Commissioner was satisfied that the effect of disclosure would be adverse.
Finally, the Commissioner agreed that the effect of disclosure would be substantial as it would be an effect of the substance of the operations of the Ombudsman, it would be likely to “frustrate” the Ombudsman’s ability to conduct its operations and meet its statutory obligations. The disclosure of PID investigation material could also call into question the integrity of the Ombudsman, due to the confidential nature of the documents.
Public interest – s 11A(5)
In relation to the conditionally exempt documents under s 47E(d), the Commissioner afforded weight to the factors favouring disclosure, including promoting the objects of the FOI Act, informing the community of the Government’s operations, revealing the reason and contextual information for a government decision, enhancing scrutiny of government decision-making, and generally contributing to the administration of justice.
The Commissioner then afforded significant weight to the factors against disclosure, including that disclosure could be reasonably expected to; prejudice to the conduct of investigations, audits or reviews by the Ombudsman, impede the flow of information to the Ombudsman as a regulatory agency, prejudice the Ombudsman’s ability to obtain confidential information, prejudice the Ombudsman’s ability to obtain similar information in the future, and prejudice the protection of the right to privacy of individual’s who provided witness accounts.
The Commissioner accepted the Ombudsman’s submissions and was satisfied that, on balance, it would be contrary to the public interest to release the information.