FOI 2025 057IR Internal Review Decision.pdf

Official

Freedom of Information (FOI) request
Notice of Internal Review Decision
Reference: FOI/2025/057IR
To: Trav S
By email: xxxxxxxxxxx@xx.xxx; xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr S
I refer to your email dated 29 April 2025 seeking an internal review under the Freedom of Information
Act 1982 (‘FOI Act’), of the decision made on 23 April 2025 (‘the original decision’) by the Department
of the Prime Minister and Cabinet (‘the Department’).
Under section 54(2) of the FOI Act, an applicant is entitled to apply for internal review of a decision
refusing to give access to a document in accordance with a request.
Scope of Internal Review
On 24 March 2025, you made a request to the Department under the FOI Act in the fol owing terms
I would be grateful if you refer to the documents PMC partial y released to FOI/2020/160IC.  Please
provide a copy of:
(1)  Page 1 of 5 with the s22 redaction removed;
(2)  The letter to the Governor-General cited as Attachment 1 on page 5 of 5.
Access to the first requested document was granted in part, with redactions under sections 42 and
47F of the FOI Act. Access to the second document was refused under section 24A(1) on the grounds
that it did not exist.
Your internal review application, received by the Department on 29 April 2025, reads:
I seek disclosure of the s42 redacted material.  PM&C ought to understand that a Commonwealth agency
disclosed this information to me wel  over a decade ago.  Documents evidencing this wil  be emailed to
xxx@xxx.xxx.xx for the record and the internal reviewers consideration.
I submit that the redacted material may not warrant legal professional privilege protection. Grounds for
disclosure include, but are not limited to, the evident waiver of LPP as a result of prior disclosure; limits to
PM&C’s claim to LPP; implied waiver through conduct; no evidence of confidentiality maintenance.

Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849   Fax: +61 2 6271 5776   www.pmc.gov.au ABN: 18 108 001 191

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Authorised decision-maker
The FOI Act provides an agency must arrange for a person (other than the person who made the
original decision) to review the decision.1
I am authorised to make this review decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Reasons for Internal Review Decision
I have decided to vary the original decision. I have decided to disclose that material over which
section 42 of the FOI Act was previously claimed, while maintaining that the personal information is
conditional y exempt and contrary to the public interest to disclose.
In reaching my decision, I have had regard to:
•  the terms of the FOI request;
•  the requested documents;
•  the original decision;
•  your request for internal review, including material shared with the Department;
•  other relevant FOI requests and consultations;
•  the FOI Act;
•  the FOI Guidelines issued by the Information Commissioner under section 93A of the FOI Act (FOI
Guidelines).
Section 42 — Legal Professional Privilege
Section 42 of the FOI Act provides that a document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings on the ground of legal professional
privilege.
The FOI Guidelines provide that to determine the application of the exemption a decision-maker must
have regard to the common law concept of legal professional privilege.2
I now understand that you are in possession of the document which is the subject of this request.
The Department has not waived its privilege and wil  continue to assert that privilege is maintained
where a claim under section 42 of the FOI Act is appropriate.
In respect of this document, considering the additional information now before me, I am of the view
that maintaining that the email is confidential, a necessary element of legal professional privilege,
would be inconsistent with the present circumstances.

1  Freedom of Information Act 1982 section 54C(2) (‘FOI Act’).
2 Office of the Australian Information Commissioner, FOI Guidelines (April 2025) [5.145]
<https://www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-government-
agencies/foi-guidelines> (‘FOI Guidelines’).

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Therefore, I have decided to provide you with a copy of the document, with redactions previously
applied under s 42 removed.
Section 47F — Personal Privacy
As outlined in the primary decision, section 47F of the FOI Act provides that a document is
conditional y exempt if its release would constitute an ‘unreasonable disclosure of personal
information’. ‘Personal information’ has the same meaning as in section 6 of the Privacy Act 1988.3
Your review application does not seek to chal enge the Department’s use of section 47F.
Notwithstanding that section 47F is not an issue over which you have sought review, I am satisfied
that release of the redacted material would constitute an unreasonable disclosure of personal
information that would be contrary to the public interest.
Section 47F(2) of the FOI Act provides that in determining whether the disclosure of personal
information would be unreasonable, an agency must have regard to the fol owing matters:
•  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, and
•  any other matters that the agency considers relevant.
The Guidelines discuss a need to balance the public interest in disclosure of government-held
information and the private interest in the privacy of individuals.4 Further, the Guidelines set out key
factors for determining whether disclosure is unreasonable, this includes:5
•  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, and
•  no public purpose would be achieved through release.
The document contains the names of APS staff who were not at the Senior Executive Service level.
Reasons disclosure would be unreasonable include:
•  the personal information is not well known or in the public domain
•  the staff were ‘cc’ recipients, meaning they were included for information purposes only
•  the staff are not known to be associated with the matters discussed within the documents
•  nothing within the FOI Act limits what an applicant may do with the released documents and the
requirement of publication will result in these documents becoming accessible to the ‘world at large’
•  release of personal information in the circumstances is reasonably expected to cause stress to the
individuals concerned.

3 FOI Act (n 1) s 4(1).
4 FOI Guidelines (n 2) [6.133].
5 Ibid [6.137].

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Having considered the FOI Act and the relevant paragraphs of the Guidelines, I am satisfied that this
information is personal information and fal s within the scope of section 47F of the FOI Act and that
disclosure of this information would be unreasonable in this instance.
I am satisfied that the personal information is exempt from release under section 47F(1) of the FOI Act.
Public interest
The FOI Act provides that a conditional y exempt document must nevertheless be disclosed unless its
disclosure would, on balance, be contrary to the public interest.6 In determining whether its disclosure
would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public
interest factors.
As I have decided that parts of the documents are conditional y exempt, I am now required to
consider the public interest factors, in doing so I have not taken into account the irrelevant factors as
set out in section 11B(4) of the FOI Act, this includes:
a)  access to the document could result in embarrassment to the Commonwealth Government, or cause a
loss in confidence in the Commonwealth Government
b)  access to the document could result in any person misinterpreting or misunderstanding the document
c)  the author of the documents was (or is) of high seniority in the agency to which the request for access
to the document was made
d)  access to the document could result in confusion or unnecessary debate.
In applying the public interest, I have noted the objects of the FOI Act, and the factors favouring
access as listed in section 11B(3) of the FOI Act. Having regard to the material before me and the
circumstances of the documents found to be conditional y exempt I am satisfied of the fol owing:
•  The disclosure of the limited amount of material that is conditional exempt under section 47F(1) would
not bring further clarity to the documents in questions and not materially promote the objects of the
FOI Act
•  the conditional y exempt elements of the documents do not seem to have the character of public
importance, being mainly limited to names and contact details of individuals who held agency positions
13 years ago, which may only be of interest to a narrow section of the public
•  the subject matter within the conditionally exempt documents does not offer any insights into public
expenditure
•  I am satisfied that your personal information is not contained within the conditionally exempt parts of
the documents and therefore section 11B(3)(d) is not a relevant factor to favour access
The FOI Act does not set out any public interest factors against disclosure and requires that agencies
have regard to the Guidelines to determine if disclosure would, on balance, be contrary to the public

6 FOI Act (n 1) s 11A(5).

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interest.7 The Guidelines contain a non-exhaustive list of factors that, depending on the circumstances
of the documents found to be conditionally exempt, may weigh against disclosure.
The disclosure of the material I have found to be the conditional y exempt could reasonably be
expected to prejudice the protection of individuals’ right to privacy. Such disclosure would not
advance the public interest in transparency or scrutiny of government activities. I give weight to this
factor against disclosure.
After careful consideration of al relevant factors, I have decided that, on balance, the factors against
disclosure outweigh those favouring disclosure. Accordingly, I am of the view that disclosure of the
requested material in the documents would be contrary to the public interest and this material is
exempt under section 47F of the FOI Act.
Review Rights
If you disagree with my decision, you may apply to the Australian Information Commissioner to review
my decision under section 54L of the FOI Act. An application for review by the Information
Commissioner must be made in writing within 60 days after the date of this letter.
More information about Information Commissioner review is available here.8

7 Ibid s 11B(5).
8 Office of the Australian Information Commissioner, Apply for an Information Commissioner review (Webpage)
<https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-reviews/information-commissioner-review>.

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FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. If you are not satisfied with our response, you can make a complaint to the
Australian Information Commissioner. A complaint to the Information Commissioner must be made in
writing. More information about complaints is available here.9

Yours sincerely

Andrew Walter
First Assistant Secretary
Government Division
Department of the Prime Minister and Cabinet
29 May 2025

9 Office of the Australian Information Commissioner, Make a Freedom of Information Complaint (Webpage)
<https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-complaints/make-an-foi-complaint>.

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