Recent Cases: Commonwealth

‘RG’ and Department of the Prime Minister and Cabinet [2019] AICmr 69 (9 October 2019)

The applicant requested from the Department of Prime Minister and Cabinet (“Department”) copies of all correspondence, emails and documents in the Department’s possession provided either by the Prime Minister or the Department and/or their legal representatives during the 2014/15 financial year.  These documents referred to were mentioned in a brief produced by the Department to the Prime Minister relating to correspondence from the Indigenous Land Corporation regarding the purchase of Ayers Rock Resort. 

The Department identified 5 documents falling within the scope of the request.  The Department gave access to 3 of the documents in part and refused the other 2 in full relying on the material obtained in confidence exemption (s 45).  The Department consulted third parties that were mentioned in the relevant documents.  The third parties confirmed that the information relevant to the request was communicated in confidence therefore objected to the release of those documents.

The applicant sought review of the Department’s decision to the Office of Australian Information Commissioner (“Commissioner”).  It specified that it only sought review of 2 documents, numbered 3 and 4.  The Department revised its decision and provided the applicant access to additional material in document 4.

Additional consultations with third parties were conducted by the Department.  The third party stated that two attachments in document 4 were no longer confidential therefore could be disclosed.  There was remaining information exempt under the exemption which formed the subject of the review as follows:

• Document 3: a letter with one attachment; and
• Document 4: a letter with two attachments.

Material obtained in confidence: s 45

The Commissioner was satisfied that these documents could be identified as correspondence between the Minister or the Department by a third party.  The third party made it clear that disclosure of these documents was not authorised, therefore, the Commissioner was satisfied that disclosure would be unreasonable.

To satisfy the exemption the following three limbs must be established:

1. Whether the information has a ‘quality of confidence;’
2. The information was communicated and received on the basis that there was a mutual understanding of confidence; and
3. Disclosure would cause detriment.

1. Quality of confidence

Document 4 attachments:  The attachments to document 4 were no longer considered confidential by the third party that communicated this with the Minister and Department. The Commissioner found that accordingly the Department should release the two attachments.

Document 3 and letter in Document 4:  The Commissioner formed the view that because the letter in document 3 was marked ‘private and confidential’ and the contents in document 4 was highly confidential (though the letter did not specify its confidentiality), the information had a necessary quality of confidence.  In both documents the contents within was not in the public domain and in particular, document 4 was only known to a very limited group of people addressed in the letter. 

The Commissioner considered the contents of both documents and concluded that there was no evidence to indicate the information in each document was publicly known therefore both had the necessary quality of confidence.

2. Mutual understanding of confidence

Document 3 was marked expressly as ‘private and confidential’ however, Document 4 was not.   The contents in Document 4 was only known to a limited group of people therefore the Commissioner was satisfied that both documents 3 and 4 and its parties mentioned in the document would have had a mutual understanding that the contents in the documents were confidential.

3. Detriment

The Commissioner accepted that release of both documents 3 and 4 would cause detriment to the parties; the parties did not authorise disclosure as the information.  Document 3 was highly sensitive.  The Commissioner was satisfied that the document would still remain sensitive even if the personal details of persons mentioned in the document were removed because the information would still be able to identify an individual if disclosed.

HELD

The Commissioner was satisfied that Documents 3 and 4 remained exempt under s 45; the two attachments to Document 4 were released based on the third parties stating it was no longer confidential.

'RI' and Department of Home Affairs (Freedom of information) [2019] AICmr 71 (15 November 2019)

The applicant requested access from the Department of Home Affairs ("Department") to tourist VISA documents that related to himself and his family .  He was particularly interested in documents provided by his family, and any audio recordings, transcripts or file notes that related to investigations made about his family or himself. 

The Department identified 7 files, documents and notes from the Department’s Integrated Client Service Environment ("ICSE"), and 3 recordings of interviews relevant to the request.  The Department disclosed the 3 audio recordings in full and the Department files in part. 

The Department stated that full disclosure of the files may prejudice its law enforcement methods and procedures (s 37(2)(b)), hinder its deliberative processes (s 47C), have a substantial adverse effect on the proper conduct of the operations of the agency (s 47E(d)) and may unreasonably disclose personal information (s 47F).

The applicant sought internal review of the Department’s decision. On review, the Department gave the applicant access to one Departmental file and to the ICSE notes in full, and partial access to the remaining Departmental files.   

The applicant then sought review from the Office of Australian Information Commissioner ("Commissioner") of the Department’s internal review decision to not disclose the remaining documents.

The Department  revised its decision and released further material, but the applicant still pursued its review to the Commissioner.

Prejudice to law enforcement methods and procedures: s 37(2)(b)

The Department claimed that an examination report and an identity assessment form were exempt.  

The unedited version of those documents indicated that there was a thorough and detailed procedure in place to obtain relevant information.  It was clear that these processes would lead to identifying an individual. 

The Commissioner formed the view that disclosure of these documents would prejudice the effectiveness of the Department's methods and procedures to obtain relevant information.  The specific procedures to obtain such information is not widely known to the public.  The Commissioner affirmed the Department's original decision.

Certain operations of agencies exemption: s 47E(d)

The Department found material in the identity assessment form partially exempt.  The document contained procedures and steps which would disclose the analysis and process in ascertaining the identity of individuals completing the form.

The Commissioner affirmed the Department’s decision that disclosure would have a  substantial adverse effect on the proper and efficient conduct of the operations of the Department.  The Commissioner accepted that the methodology was so specific and connected to the operations of the agency that disclosure of the form may hinder the Department's ability to obtain the same information in future.

Public interest

The Commissioner was satisfied that the public interest factors against disclosure outweigh the factors in favour of disclosure.  Disclosure of the examination report and identity assessment form could reasonably be expected to prejudice the ability of the Department to maintain and enforce the integrity of Australia’s visa and citizenship processes by revealing its operating procedures, in the context of a broader national migration framework.

Personal privacy: s 47F

The Commissioner found the documents exempt under s 47E(d) therefore did not consider this section.

HELD

The Commissioner affirmed the Department's decision to refuse access.