Our reference: FOI 23-226
Alex Sul ivan
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Alex
Decision on your Freedom of Information Request
I refer to your request of 1 April 2023, to the Classification Board (the Board), seeking access to documents
under the Freedom of Information Act 1982 (FOI Act).
1
Authority to make decision
I am authorised to make decisions in relation to Freedom of Information requests under section 23(1) of the
FOI Act.
2
Material taken into consideration
In making my decision, I had regard to the fol owing:
• the terms of your request
• the content of the documents captured by your request
• the provisions of the FOI Act
• the guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the FOI Guidelines)
• advice from officers with responsibility for the subject matter contained in the documents captured
by your request
3
Scope of your request
You requested access to:
Documents relating to the classification of the film Faces of Death, as wel as its sequels Faces of Death
2, 3 and 4. I seek classification reports, censor notes, board reports, and any correspondence with the
distributor of these films that may have influenced the board's decisions.
GPO Box 594, Canberra ACT 2601, Australia
telephone websites infrastructure.gov.au | arts.gov.au
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Decision
I have identified 40 documents that are relevant to your request. These documents were in the possession of
the Department when your request was received.
I have decided to:
• grant access in ful to two documents
• grant partial access to 38 documents
A schedule setting out the documents relevant to your request, with my decision in relation to these
documents, is at ATTACHMENT A.
My reasons for refusing access to information that is relevant to your request are set out below.
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Finding of facts and reasons for decision
My findings of fact and reasons for deciding that the exemptions identified in the schedule of documents apply
to parts of documents are set out below.
5.1 Section 37 - documents affecting enforcement of law and protection of public safety
Section 37(2)(c) of the FOI Act provides that a document is an exempt document if its disclosure would, or could
reasonably be expected to prejudice the maintenance or enforcement of lawful methods for the protection of
public safety.
Paragraph 5.1116 of the FOI Guidelines states:
5.116
The words ‘public safety’ do not extend beyond safety from violations of the law and breaches
of the peace. The AAT has observed that ‘public safety’ should not be confined to any particular
situation, such as civil emergencies (bushfires, floods and the like) or court cases involving the
enforcement of the law. The AAT also noted that considerations of public safety and lawful
methods wil be given much wider scope in times of war than in times of peace.
In relation to the test would or could reasonably be expected, paragraphs 5.16-5.18 of the FOI Guidelines state:
5.16
The test requires the decision maker to assess the likelihood of the predicted or forecast event,
effect or damage occurring after disclosure of a document.
5.17
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires
analysis of the reasonable expectation rather than certainty of an event, effect or damage
occurring. It may be a reasonable expectation that an effect has occurred, is presently
occurring, or could occur in the future.
5.18
The mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation.
There must, based on reasonable grounds, be at least a real, significant or material possibility
of prejudice.
The Board makes decisions relating to the classification of publications, films and computer games under the
Classification (Publications, Films and computer Games) Act 1995 (the Classification Act), the National
Classification Code (the Code) and the Guidelines for the Classification of Films and Computer Games 2005 (the
Guidelines).
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Paragraph 1 of the Code provides that:
1.
Classification decisions are to give effect, as far as possible, to the fol owing principles:
(a) adults should be able to read, hear, see and play what they want;
(b) minors should be protected from material likely to harm or disturb them;
(c) everyone should be protected from exposure to unsolicited material that they find offensive;
(d) the need to take account of community concerns about:
(i) depictions that condone or incite violence, particularly sexual violence; and
(i ) the portrayal of persons in a demeaning manner.
Paragraph 3, Item 1 of the Code provides that films that depict, express or otherwise deal with specified
matters; describe or depict in a way that is likely to cause offence to a reasonable adult; or promote incite or
instruct in matters of crime of violence, should not be classified and be Refused Classification (RC).
Each state and territory has classification enforcement legislation to complement the Classification Act and
provides for offences in relation to the exhibition and sale of RC films.
The document contains detailed descriptions of the content of the film being reviewed for classification
purposes and reflect the reasons for the Board’s decision to not classify the film and for it to be RC.
I am satisfied that disclosure of parts of the documents marked ‘s37(2)(c)’ would, or could reasonably be
expected to, prejudice the maintenance or enforcement of lawful methods for the protection of public safety.
I am further satisfied that disclosure of this information would result in real, significant or the material
possibility of prejudice to the protection of maintenance or enforcement of lawful methods for the protection
of public safety.
For the reasons outlined above, I decided that parts of the documents marked ‘s37(2)(c)’ are exempt from
disclosure under section 37 of the FOI Act.
5.2 Section 47E - Documents affecting certain operations of agencies
Section 47E of the FOI Act provides that a document is conditional y exempt if its disclosure would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Paragraph 6.120 of the FOI Guidelines states:
An agency’s operations may not be substantial y adversely affected if the disclosure would, or could
reasonably be expected to lead to a change in the agency’s processes that would enable those processes
to be more efficient. For example, in Re Scholes and Australian Federal Police [1996] AATA 347, the AAT
found that the disclosure of particular documents could enhance the efficiency of the Australian Federal
Police as it could lead to an improvement of its investigation process.
Paragraph 6.123 of the FOI Guidelines states that the predicted effect must bear on the Department’s ‘proper
and efficient’ operations, that is, the Department is undertaking its expected activities in an expected manner.
Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional
exemption wil not be met and the conditional exemption wil not apply.
As outlined above, the Board is responsible for assessing and making decisions relating to the classification of
publications, films and computer games under the Classification Act. Disclosure of the descriptive content of
the film that depicts, expresses or otherwise deals with matters specified in the Code; and/or describes or
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depicts film content in a way that is likely to cause offence to a reasonable adult; or promotes, incites or
instructs in matters of crime of violence, would disclose information that the Board has decided should not be
classified under the Classification Act and should be Refused Classification (RC). The disclosure of that
descriptive content would subvert the classification process by revealing content likely to cause offence to a
reasonable adult.
I am satisfied that parts of the documents marked ‘s47E(d)’ contains information which, if disclosed, would or
could reasonably be expected to, have a substantial and an unreasonable effect on the Department’s proper
and efficient operations. These are operational activities that are being undertaken in an expected and lawful
manner, and would not reveal inefficiencies in the way in which the Department conducts those operational
activities.
For the reasons outlined above, I decided that parts of the documents marked ‘s47E’ are conditional y exempt
from disclosure under section 47E of the FOI Act.
Where information is found to be conditional y exempt, I must give access to that information unless access at
this time would, on balance, be contrary to the public interest. I have addressed the public interest
considerations below.
5.3 Section 47F – Documents affecting personal privacy
Section 47F of the FOI Act provides that a document is conditional y exempt if its disclosure would involve the
unreasonable disclosure of personal information about any person (including a deceased person).
Personal Information
Personal information has the same meaning as in the Privacy Act. Specifical y, section 6 of the Privacy Act
provides that personal information means information or an opinion about an identified individual, or an
individual who is reasonably identifiable whether the information or opinion is true or not; and whether the
information or opinion is recorded in a material form or not.
Paragraph 6.131 of the FOI Guidelines states that for particular information to be personal information, an
individual must be identified or reasonably identifiable.
Paragraph 6.130 of the FOI Guidelines states that personal information can include a person’s name, address,
telephone number, date of birth, medical records, bank account details, taxation information and signature.
An individual is a natural person rather than a corporation, trust, body politic or incorporated association.
I am satisfied that parts of the documents marked ‘s47F’ include personal information about a number of
private individuals.
Unreasonable Disclosure of Personal Information
Section 47F(2) of the FOI Act provides that, in determining whether the disclosure would involve the
unreasonable disclosure of personal information, I must have regard to the fol owing matters:
(a) the extent to which the information is wel known
(b) whether the person to whom the information relates is known to be (or to have been) associated
with the matters dealt with in the document
(c)
the availability of the information from publicly accessible sources
(d) any other matters that the agency or Minister considers relevant.
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Paragraph 6.138 of the FOI Guidelines states that:
The personal privacy exemption is designed to prevent the unreasonable invasion of third parties’
privacy. The test of ‘unreasonableness’ implies a need to balance the public interest in disclosure of
government-held information and the private interest in the privacy of individuals. The test does not,
however, amount to the public interest test of s 11A(5), which fol ows later in the decision making
process. It is possible that the decision maker may need to consider one or more factors twice, once to
determine if a projected effect is unreasonable and again when assessing the public interest balance.
I note that the AAT, in Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at paragraph
259, stated that:
... whether a disclosure is ‘unreasonable’ requires … a consideration of al the circumstances, including
the nature of the information that would be disclosed, the circumstances in which the information was
obtained, the likelihood of the information being information that the person concerned would not wish
to have disclosed without consent, and whether the information has any current relevance … it is also
necessary in my view to take into consideration the public interest recognised by the Act in the disclosure
of information … and to weigh that interest in the balance against the public interest in protecting the
personal privacy of a third party ...
Paragraphs 6.142 and 6.143 of the FOI Guidelines state:
6.142
Key factors for determining whether disclosure is unreasonable include:
the author of the document is identifiable
the documents contain third party personal information
release of the documents would cause stress on the third party
no public purpose would be achieved through release
6.143
As discussed in the leading s 47F IC review decision of ‘FG’ and National Archives of Australia
[2015] AICmr 26, other factors considered to be relevant include:
the nature, age and current relevance of the information
any detriment that disclosure may cause to the person to whom the information relates
any opposition to disclosure expressed or likely to be held by that person
the circumstances of an agency’s col ection and use of the information
the fact that the FOI Act does not control or restrict any subsequent use or dissemination
of information released under the FOI Act
any submission an FOI applicant chooses to make in support of their application as to their
reasons for seeking access and their intended or likely use or dissemination of the
information, and
whether disclosure of the information might advance the public interest in government
transparency and integrity
I am satisfied that the disclosure of personal information contained within the documents would, in the
circumstances, constitute an unreasonable disclosure of personal information for the fol owing reasons:
• the information is not wel known
• the person to whom the information relates is not known to be (or to have been) associated with the
matters dealt with in the documents
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• the information is not available from publicly accessible sources
• the individuals whose personal information is contained in the documents are identifiable
• release of this information would cause anxiety to the individuals concerned
• no further public purpose would be achieved through the release of the personal information, noting
that the personal information is included in the document as a result of the individuals employment
circumstance only
• the individuals would not expect the information to be placed in the public domain, and detriment
may be caused to the individuals to whom the information relates, and
• the FOI Act does not control or restrict any subsequent use or dissemination of information released
under the FOI Act.
For the reasons outlined above, I decided that parts of the documents marked ‘s47F’ are conditional y exempt
from disclosure under section 47F of the FOI Act.
Where information is found to be conditional y exempt, I must give access to that information unless access at
this time would, on balance, be contrary to the public interest. I have addressed the public interest
considerations below.
5.4 Public interest considerations
Pursuant to section 11A(5) of the FOI Act, I must give access to conditional y exempt information unless access
to that information at that time would, on balance, be contrary to the public interest. I have therefore
considered whether disclosure of the conditional y exempt information would be contrary to the public interest.
I note that paragraph 6.5 of the FOI Guidelines states that the public interest test is considered to be:
• something that is of serious concern or benefit to the public, not merely of individual interest
• not something of interest to the public, but in the interest of the public
• not a static concept, where it lies in a particular matter wil often depend on a balancing of interests
• necessarily broad and non-specific and
• relates to matters of common concern or relevance to al members of the public, or a substantial
section of the public.
Factors favouring disclosure
Section 11B of the FOI Act provides that factors favouring access to conditional y exempt information in the
public interest include whether access to that information would do any of the fol owing:
• promote the objects of the FOI Act (including al matters set out in sections 3 and 3A)
• inform debate on a matter of public importance
• promote effective oversight of public expenditure
• al ow a person to access his or her own personal information.
Having regard to the above, I consider that disclosure of the conditional y exempt information at this time:
• would provide access to documents held by an agency of the Commonwealth which would promote
the objects of the FOI Act by providing the Australian community with access to information held by
the Australian Government.
• would not inform debate on a matter of public importance
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• would not promote effective oversight of public expenditure
• would not al ow you access to your own personal information.
Factors weighing against disclosure
I consider that the fol owing factors weigh against disclosure of the conditional y exempt information at this
time, on the basis that disclosure:
• could reasonably be expected to prejudice security, law enforcement, public health or public safety
• could reasonably be expected to prejudice the Board’s responsibilities relating to the assessment of
publications, films and computer games under the Classification Act, with disclosure of the
conditional y exempt material undermining the decision made to refuse classification to the film
• would subvert the purpose for which this film was refused classification by revealing content likely to
cause offence to a reasonable adult; or promote, incite or instruct in matters of crimes of violence
• could reasonably be expected to prejudice the protection of a number of individuals’ right to personal
privacy
o I note that the substance of the information that is relevant to your request has been released to
you and disclosure of the personal information would not provide you with any further insight into
the workings of government beyond that substantive information
In making my decision, I have not taken into account any of the irrelevant factors set out in section 11B(4) of
the FOI Act, which are:
(a)
access to the conditional y exempt information could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the Commonwealth Government
(b) access to the conditional y exempt information could result in any person misinterpreting or
misunderstanding that information
(c)
the author of the document was (or is) of high seniority in the agency to which the request for
access to the document was made
(d) access to the conditional y exempt information could result in confusion or unnecessary debate.
Conclusion – disclosure is not in the public interest
For the reasons set out above, after weighing al public interest factors for and against disclosure, I decided
that, on balance, disclosure of the conditional y exempt information would be contrary to the public interest. I
am satisfied that the benefit to the public resulting from disclosure of the conditional y exempt information is
outweighed by the benefit to the public of withholding that information.
5.5 Section 22 – deletion of irrelevant and/or exempt material
Section 22 of the FOI Act applies to documents containing irrelevant and/or exempt material and al ows an
agency to delete such material from a document.
I decided that the documents captured by your request contain material which can reasonably be regarded as
irrelevant to your request. As such, an edited copy of those documents has been prepared in accordance with
section 22(1)(a)(i ) of the FOI Act. This information is marked ‘s22’ in the documents released to you.
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The documents contain personal identifiers of public servants. When your request was acknowledged, we
notified you that personal information of public servants below the SES level and al email addresses, signatures
and direct telephone numbers would be considered irrelevant to the scope of your request unless you told us
that you were expressly seeking access to that information. On the basis that you did not notify us otherwise,
I decided this information is irrelevant to your request and it has been deleted under section 22 of the FOI Act
as outlined above.
In addition, as I decided that some information you have requested is exempt from disclosure, I have prepared
an edited copy of the documents being released by deleting the exempt information under section 22(1)(a)(i)
of the FOI Act.
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Legislative provisions
The FOI Act, including the provisions referred to in my decision, are available on the Federal Register of
Legislation website: www.legislation.gov.au/Series/C2004A02562.
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Your review rights
Your review rights in relation to this decision are set out at ATTACHMENT B.
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Publication of material released under the FOI Act
Where I have decided to release documents to you, the Department may also publish the released material on
its Disclosure Log. The Department wil not publish personal or business affairs information where it would be
unreasonable to do so.
For your reference the Department’s Disclosure Log can be found here: www.infrastructure.gov.au/about-
us/freedom-information/freedom-information-disclosure-log.
Further information
The Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the
Department) provides administrative assistance to the Board in relation to the processing of FOI requests. If
you require further information regarding this decision, please contact the Department’s FOI Section
at xxx@xxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Fiona Jol y
Director
Classification Board
26 May 2023
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ATTACHMENT A.
SCHEDULE OF DOCUMENTS FOI 23-226
Doc Date of
Description of document
Num of Decision on access Provision
No. document
Pages
of FOI Act
Faces of Death 1 –
1.
8/10/1980 Application for the Registration of a Film
2
Partial access
s47F
2.
9/12/1980 Film Censorship Board notes
9
Partial access
s22
s37(2)(c),
s47E(d)
3.
9/12/1980 Film Censorship Board notes
1
Partial access
s22
4.
9/12/1980 Film Censorship Board notes
7
Partial access
s22
s37(2)(c),
s47E(d)
5.
9/12/1980 Film Censorship Board notes
10
Partial access
s22
s37(2)(c),
s47E(d)
6.
18/12/1980 Certificate of Refusal to Register
1
Ful access
7.
29/12/1980 Letter to Film Board of Review seeking
1
Partial access
s47F
review
8.
29/12/1980 Statement supporting review
1
Partial access
s47F
9.
31/12/1980 Acknowledgement of application
1
Partial access
s22
s47F
10.
12/01/1981 Letter from Producer
3
Partial access
s22
s47F
s37(2)(c),
s47E(d)
11.
22/01/1981 Letter to Producer
1
Partial access
s22
s47F
s37(2)(c),
s47E(d)
12.
23/01/1981 Review Report
2
Partial access
s22
s37(2)(c),
s47E(d)
13.
21/10/1985 Letter from Producer
2
Partial access
s47F
14.
12/11/1985 Letter to Producer
3
Partial access
s47F
s37(2)(c),
s47E(d)
15.
23/03/2007 DVD Application
1
Partial access
s47F
16.
28/03/2007 Board Notes
8
Partial access
s22
17.
28/3/2007 Classification Board Report
3
Partial access
s22
18.
30/03/2007 Classification Certificate for a film
1
Partial access
s47F
Faces of Death 2 – RC
19.
15/09/1983 Application for Registration of a Film
1
Partial access
s47F
20.
16/11/1983 Film Censorship Board Report
16
Partial access
s22
s37(2)(c),
s47E(d)
21.
16/11/1983 Film Censorship Board Report
9
Partial access
s22
s37(2)(c),
s47E(d)
9
Doc Date of
Description of document
Num of Decision on access Provision
No. document
Pages
of FOI Act
22.
16/11/1983 Film Censorship Board Report
6
Partial access
s22
s37(2)(c),
s47E(d)
23.
21/11/1983 Certificate of Refusal to Register
2
Ful access
24.
14/11/2007 Classification Application
4
Partial access
s47F
25.
5/12/2007 Board Notes
7
Partial access
s37(2)(c),
s47E(d)
26.
5/12/2007 Board Notes
9
Partial access
s37(2)(c),
s47E(d)
27.
5/12/2007 Board Notes
9
Partial access
s22
s37(2)(c),
s47E(d)
28.
17/12/2007 Classification Certificate for a film
3
Partial access
s47F
s37(2)(c),
s47E(d)
29.
17/12/2007 Board Report
4
Partial access
s37(2)(c),
s47E(d)
Faces of Death 3 – RC
30.
13/11/2007 Classification Application
8
Partial access
s22
s47F
31.
7/12/2007 Board Notes
4
Partial access
s22
s37(2)(c),
s47E(d)
32.
7/12/2007 Board Report
6
Partial access
s22
s37(2)(c),
s47E(d)
33.
7/12/2007 Board Report
4
Partial access
s22
s37(2)(c),
s47E(d)
34.
14/12/2007 Classification Board Decision Report
1
Partial access
s22
Faces of Death 4 - RC
35.
14/11/2007 Classification Application
5
Partial access
47F
36.
29/11/2007 Board Notes
14
Partial access
s22
s37(2)(c),
s47E(d)
37.
6/12/2007 Board Notes
8
Partial access
s22
s37(2)(c),
s47E(d)
38.
6/12/2007 Board Notes
10
Partial access
s22
s37(2)(c),
s47E(d)
39.
9/12/2007 Classification Board Report
3
Partial access
s22,
s37(2)(c),
s47E(d)
40.
9/12/2007 Classification Board Decision Report
1
Partial access
s22,
10
ATTACHMENT B.
YOUR REVIEW RIGHTS
If you are dissatisfied with my decision, you may apply for a review of it.
Information Commissioner review or complaint
You have the right to seek a review by the Information Commissioner of this decision.
An application for IC review must be made in writing to the Office of the Australian Information Commissioner
(OAIC) within 60 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge a complaint with the
OAIC. However, the OAIC suggests that complaints are made to the agency in the first instance.
While there is no particular form required to make a complaint to the OAIC, the complaint should be in writing
and set out the reasons for why you are dissatisfied with the way your request was processed. It should also
identify the Department of Infrastructure, Transport, Regional Development, Communications and the Arts as
the agency about which you are complaining.
You can make an IC review application or make an FOI complaint in one of the fol owing ways:
online at www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
via email to xxxxx@xxxx.xxx.xx
by mail to GPO Box 5218 Sydney NSW 2001, or
by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is available on the OAIC website
here: www.oaic.gov.au/freedom-of-information/foi-review-process.
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