Recent Cases: Commonwealth

'WU' and Department of Defence (Freedom of information) [2021] AICmr 9 

The decision under review is an access grant decision made by the Department of Defence (“Department”) on 29 March 2018.  

On 5 December 2017, the FOI applicant applied to the Department for access to email correspondence sent by their supervisors between 1 January 2017 and 5 May 2017 where the applicant was the main subject of the email correspondence. 

On 9 March 2018, under s 27A of the Freedom of Information Act (“FOI Act”), the Department undertook third party consultation with the Information Commissioner (“IC”) review applicant.  The IC review applicant was invited to raise any objections in relation to the proposed release of personal information contained in two documents identified as being relevant to the request under s 47F of the FOI Act.

On 26 March 2018, the IC review applicant responded to the Department’s s 27A consultation notice objecting to disclosure of the two documents on the basis that they are exempt under s 47F of the FOI Act.

On 29 March 2018, the Department made a decision on the request and advised the applicant it had identified 168 documents, comprising 617 pages, within scope of the request.  Of those documents, two were the documents about which the IC review applicant had been consulted.

Despite the Department granting access in part to both documents, on 10 April 2018, the IC review applicant sought IC review of the Departments decision under s 54M of the FOI Act.

Personal privacy exemption: s 47F

The main requirements of the public interest conditional exemption are that a document contains ‘personal information’, disclosure in response to the applicant’s FOI request would be ‘unreasonable’ and it would be ‘contrary to the public interest’ to disclose the material at the time of the decision. 

The first requirement being that ‘personal information’ has the same meaning as the Privacy Act 1988 (“Privacy Act”).  The material the IC review applicant contends under s 47F is part of a single sentence at the bottom of an email.  The IC is satisfied that the partial sentence contains personal information about the applicant and that the material satisfies the definition of personal information in s 4(1) of the Privacy Act and is therefore personal information for the purposes of s 47F. 

The second requirement requires that disclosure under the FOI Act would involve an unreasonable disclosure of personal information. 

During the consultation process under s 27A of the FOI Act, the IC review applicant objected to disclosure of the documents which contained his personal information.  While the scope of the IC review has since been narrowed, the IC had to take into consideration the submissions made by the applicant in response to the Department’s consultation request.  The IC found that it is apparent that the information relates to the IC review applicant’s views and opinion about the FOI applicant’s work performance.

HELD:

The partial sentence at the bottom of the document that the Department found not to be exempt under s 47F is not conditionally exempt under the provision.  As the document is not conditionally exempt, it is not necessary to consider whether the disclosure of the document would be contrary to the public interest for the purposes of s 11A(5) of the FOI Act. 

Cambridge; Chief Executive Officer, Services Australia and (Freedom of information) [2021] AATA 1142 

Nicholas Cambridge (“respondent”) had originally made a FOI request to Services Australia (“applicant”) for access to numerous documents.  The applicant refused the request on the basis that the respondent had not provided sufficient information to identify the documents requested.  The respondent sought review of the decision by the Information Commissioner.  The Information Commissioner set aside the decision of Services Australia.  The applicant subsequently sought review of the Information Commissioner’s decision that a practical refusal did not exist

Substantial and unreasonable diversion of resources: s 24AA(a)(i)

The Tribunal held that clearly, having to spend 88.5 hours processing the Respondent’s request would tie up resources in the FOI section of Services Australia that would otherwise be processing other FOI requests.  The Tribunal was satisfied that 88.5 hours of processing met the ‘substantial’ test.

The Tribunal gave particular consideration to two factors in determining whether the diversion of resources would be ‘reasonable’, namely; whether there is a significant public interest in the documents requested and whether other steps have been taken by the agency to publish information of the kind requested by the FOI applicant.  The Tribunal held that other than the general public interest in departmental documents being available on request under the FOI Act, there was no particular public interest in the documents requested by the Respondent to be made available.  The Tribunal also gave significant to the fact that Services Australia had already provided the documents requested (in some cases more than once) and has offered to release the relatively small balance through administrative access arrangements.  The Tribunal also noted that insofar as any interest is served by the release of the documents in question, that interest had already been met.

HELD:

The Tribunal set aside the decision of the Information Commissioner and substituted a decision that a practical refusal reason under s 24AAA(1)(a)(i) of the FOI Act exists.