OFFICIAL
Our ref: FOI-2025-80162-IR
21 January 2025
Robert Not Given
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Not Given,
Freedom of Information request- Internal review decision
1. On 23 December 2025 you requested an internal review under s 54 of the
Freedom of
Information Act 1982 (
FOI Act) of the Freedom of Information (
FOI) decision sent to
you on the same day (
original decision).
2. I am an officer authorised under s 23 of the
FOI Act to make decisions in relation to
FOI requests.
The original decision
3. Your original FOI request, submitted on 29 November 2025 and confirmed by you on
1 December 2025 was made in the following terms:
On 21 September 2020, the investigator of Professor Peter Tregear's complaint
about an inadequately handled PID (Ombudsman's reference 2019-402149)
noted the following:
Our Office will consider whether it is appropriate to make any further comments
or suggestions to the ANU under section 12(4) of the Ombudsman Act with a
view to improving future administration of the public interest disclosure
scheme.”
I request access to any and all documents setting out “further comments or
suggestions to the ANU under section 12(4) of the Ombudsman Act” arising
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from the investigation, under the Ombudsman Act 1976 (Cth), that was
terminated by the Ombudsman's delegate.
4. I have decided to
affirm the original decision and refuse access to the 1 document
identified as responsive to your FOI request. I have refused access to this document
under ss 37, 47E and 47F of the
FOI Act.
5. As I have decided to affirm the original decision, I will not be providing a schedule of
documents as this will have been provided to you in the original decision.
Material taken into account
6. In making my decision, I have considered:
• Your application for internal review;
• The scope of your FOI request (including any interpretation of that request);
• The outcome of searches;
• Advice provided by subject matter experts in relevant line areas;
• The content of the document responsive to the scope of your request;
• Relevant provisions of the
FOI Act,
• The FOI Guidelines issued by the Office of Australian Information
Commissioner (
OAIC) under s 93A of the
FOI Act (
FOI Guidelines).
Your request for review of original decision and the conduct of my review
7. Your review request seeks "
a complete internal review of your handling of my FOI
request (FOI 2025 80162). Your review request does not identify any specific aspect
of the original decision with which you disagree, nor does it set out submissions
explaining why you consider the decision to be incorrect. Therefore, I have
conducted a complete internal review of the original decision including by:
• Adopting a reasonable interpretation of the scope of your request;
• Conducting fresh searches for documents responsive to your request;
• Considering the application of relevant exemptions to material identified; and
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• Assessing the application of the public interest test to material conditionally
exempted.
Interpretation of the scope of your request
8. Paragraph 3.52 of the FOI Guidelines provides that:
The starting point for determining the scope of the FOI request is the wording of
the request. An FOI request should be interpreted as extending to any
document that might reasonably be taken to be included within the description
the FOI applicant has used.
9. I have reviewed the scope of your FOI request and have interpreted it as requesting
access to:
Any and all documents that contain comments and/or suggestions made by this
Office to the Australian National University (
ANU)
under section 12(4) of the
Ombudsman Act 1976 (Cth) (
Ombudsman Act) arising from the investigation
under the
Ombudsman Act that was terminated by the Ombudsman's delegate,
where those comments and/or suggestions are made after 21 September 2020
with a view to improving future administration of the public interest scheme.
Fresh searches for responsive documents
10. I requested that the relevant Office business area with subject matter expertise
conduct fresh searches for documents responsive to the scope of your request.
Thorough searches have been undertaken of the Office's complaints management
system. The complaints management system is the records management system
used by the Office in the ordinary course of business. I am satisfied that all
reasonable steps have been taken to locate documents responsive to your request
and one document was determined to fall within the scope of your request.
Application of exemptions and consideration of public interest
Exemption - documents affecting law enforcement: s 37
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11. Section 37(1)(a) of the
FOI Act provides that:
(1) A document is an exempt document if its disclosure under this Act would, or
could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible
breach, of the law, or a failure, or possible failure, to comply with a law
relating to taxation or prejudice the enforcement or proper administration
of the law in a particular instance.
12. The Office administers the
Public Interest Disclosure Act 2013 (Cth) (
PID Act) under
which it receives and investigates complaints concerning the handling of public
interest disclosure (
PIDs). The effective administration and enforcement of the PID
scheme relies on candid and confidential communications between this Office and
potential disclosers, and this Office and other agencies, including the exchange of
frank assessments, comments, suggestions and recommendations relating to
investigations.
13. The disclosure of the Office's confidential communications with other agencies in
the form of comments and suggestions provided in the context of PID investigations
could reasonably be expected to prejudice the conduct of those investigations.
Disclosure would be likely to undermine cooperative and frank engagement in
future PID related matters, as agencies may be reluctant to provide full and candid
information if such communications were subject to public release.
14. This, in turn, could reasonably be expected to prejudice the proper administration
and enforcement of the
PID Act by inhibiting this Office's ability to effectively
investigate potential breaches of the law and to perform its statutory functions.
15. Therefore, I am satisfied that disclosure of the information I have refused access to
would, or could reasonably be expected to, prejudice the conduct of an
investigation of a breach, or possible breach, of the law or prejudice the
enforcement or proper administration under s 37 of the
FOI Act.
Conditional exemption - Certain operations of agencies: s 47E(d)
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16. Section 47E(d) of the
FOI Act conditionally exempts a document if its disclosure
could reasonably be expected to "
(d) have a substantial adverse effect on the
proper and efficient conduct of the operations of the agency."
17. The material I have conditionally exempted under s 47E(d) comprises confidential
communications exchanged between this Office and another agency in the course
of the PID complaints process.
18. This Office has a specific statutory role under the PID scheme which includes
receiving, assessing and investigating complaints concerning the handling of PIDs.
The effective performance of this role depends on the Office's ability to obtain
information from agencies and to engage in candid, frank and fulsome
communications with those agencies about the handling of PID matters.
19. Disclosure of the Office's comments and/or suggestions provided to another
agency in the context of a PID complaint could reasonably be expected to have a
substantial adverse effect on the proper and efficient conduct of the Office's
operations. Disclosure would be likely to reduce the willingness of agencies to
engage openly with this Office or provide full and frank information in future PID
matters, due to concerns that such communications may be made public. I also
note the importance of maintaining the confidentiality obligations the Office owes
to disclosers under the PID scheme. Disclosing particulars relating to a PID could
also greatly reduce the willingness of potential disclosers to come forward.
20. Paragraph 6.114 of the FOI Guidelines provides that s 47E(d) of the
FOI Act may
apply to information that relates to a complaint made to an investigative body.
Paragraph 6.114 provides that disclosure of this type of information may reduce the
willingness of parties to provide information relevant to a particular complaint and
may reduce their willingness to participate fully and frankly with the investigative
process. In such cases the investigative body’s ability to obtain all information
would be undermined and this may have a substantial adverse effect on the
proper and efficient conduct of the investigative body’s operations.
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21. I am satisfied that disclosure of the Office's comments and/or suggestions
provided to another agency in the context of the PID complaints process would be
likely to undermine the willingness of agencies to engage openly with this Office
and to provide information relevant to the handling of PIDS, if that information were
disclosed publicly. Such an outcome would, in turn, underminer the Office's ability to
properly and efficiently investigate PID complaints and to discharge its oversight
functions under the PID framework.
22. Therefore, I consider that disclosure of the information would or could reasonably
be expected to have a substantial adverse effect on the proper and efficient
conduct of the Office's operations under s 47E(d) of the
FOI Act.
Disclosure not in the public interest
23. Section 11A(5) of the
FOI Act provides that while an agency must give a person
access to documents if it is conditionally exempt, access may be refused if the
document's disclosure would, on balance, be contrary to the public interest.
24. In deciding whether or not access should be given to this information, on the basis
that it is in the public interest to do so, I have taken into account the public interest
factors for and against disclosure in s 11B(3) of the
FOI Act and the FOI Guidelines at
paragraphs [6.229-6.231] and [6.232].
25. I consider that disclosure of the material would promote transparency and
accountability in government decision making. This is a public interest factor
favouring disclosure. However, I am satisfied that there are significant public
interest factors against disclosure. In particular, I consider that disclosure would:
• inhibit the provision of confidential information necessary to perform
statutory functions. This would in turn prejudice the Office's ability to
effectively conduct PID investigations by inhibiting future cooperation from
potential disclosers and in particular other agencies with regards to their
providing information where that information could be publicly disclosed;
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• adversely affect the Office's relationships with the public and other agencies
and undermine its reputation as an independent oversight body, by
discouraging potential disclosers and agencies from engaging openly and
cooperatively with the Office where communications may be publicly
disclosed, and
• impair the proper and efficient performance of statutory functions if the flow
of confidential information is limited.
26. Having weighted the relevant factors, I consider that the public interest factors
against disclosure carry greater weight that the factors favouring disclosure. I am
satisfied that disclosure of the relevant information would, on balance, be contrary
to the public interest.
Conditional exemption - Personal privacy: s 47F
27. Section 47F of the
FOI Act conditionally exempts a document where ‘
its disclosure
would involve the unreasonable disclosure of personal information about any
person.’ I must give access unless access would, on balance, be contrary to the
public interest (s 11A(5)).
28. ‘Personal information’ is defined in s 4 of the
FOI Act as:
information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or
not.
29. I have conditionally exempted the following material as personal information:
• The full name and contact details of an ANU staff member and the last name
of an Office staff member; and
• the full name of a third-party individual.
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30. This information constitutes personal information within the meaning of s 4 of the
FOI Act, as it is material about an individual and the individual is identifiable or
reasonably identifiable from the relevant information. This position is supported by
paragraph 6.146 of the FOI Guidelines.
31. In considering whether disclosure of personal information would be unreasonable, I
have taken into account factors at s 47F(2) of the
FOI Act, including:
• the extent to which the information is well known;
• 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;
• the availability of the information from publicly accessible sources;
• the fact that the information relates to parties other than yourself, and
• the circumstances in which the information was obtained and any
expectation of confidentiality.
32. I am satisfied the personal information is conditionally exempt from disclosure on
the basis that it is unreasonable to disclose this personal information.
Disclosure not in the public interest
33. Section 11A(5) of the
FOI Act provides that I must provide access to conditionally
exempt material, unless disclosure would, on balance, be contrary to the public
interest.
34. In deciding whether disclosure would be contrary to the public interest, I have
considered the public interest factors for and against disclosure, s 11B(3) of the
FOI
Act and the FOI Guidelines at paragraphs [6.229 – 6.233]. Other than the bare
provision of government information, I have not identified any particular public
interest in disclosing this personal information.
35. The following factors in my view weigh against disclosure:
• disclosure could reasonably be expected to prejudice the protection of a
person’s right to privacy;
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• the fact that such personal information is not on the public record or
otherwise available from publicly accessible sources;
• disclosure would be an unreasonable intrusion into the individuals' privacy
and wellbeing, and
• the personal information is not yours.
36. I have given considerable weight to the protection of the individual's right to
privacy, and relevant work, health, and safety obligations and find the disclosure of
personal information would be contrary to the public interest. I am satisfied that
this material is exempt pursuant to s 47F of the
FOI Act.
Review rights
Information Commissioner review or complaint
37. You have the right to seek IC review of this decision. An application for IC review must
be made in writing within 60 days of the decision.
38. 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.
39. 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 Ombudsman’s
Office as the agency about which you are complaining.
40. You can make an IC review application or make an FOI complaint in one of the
following ways:
• online at
Apply for an IC Review or at
Freedom of Information complaints
• via email t
o xxxxx@xxxx.xxx.xx
• by mail to GPO Box 5218 Sydney NSW 2001, or
• by fax to 02 9284 9666.
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41. More information about the OAIC and your FOI rights is available at
Your Freedom of
Information rights | OAIC.
Yours sincerely
Clare
Senior Legal Officer
Legal
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