Ref: IR 80210
Oliver Smith
Via emai
l: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Oliver Smith
Freedom of Information request – Internal Review Decision
I refer to your request dated and received by the Department of Climate Change, Energy, the
Environment and Water (
department) on 16 June 2025, for internal review of the department’s
decision under the
Freedom of Information Act (
FOI Act) dated 13 June 2025 (
Primary
Decision).
My decision
I have decided to
vary the Primary Decision and release some information in the document
relevant to your request. The remaining information in the document that I have decided not to
release remains exempt under section 47C of the FOI Act.
The reasons for my decision are set out at
Attachment A.
You can ask for a review of my decision
You may apply directly to the Office of the Australian Information Commissioner (
OAIC) to
review my decision. An application for review by the Information Commissioner must be made
in writing within
60 days after the day you are notified of this decision. You can also make a
complaint to the Information Commissioner if you have concerns about how the Department
handled your request. You can find information about requesting a review, making a complaint,
and other information about FOI on the OAIC websi
te www.oaic.gov.au or phone the OAIC on
1300 363 992.
Further assistance
If you have any questions, please emai
l xxx@xxxxxx.xxx.xx.
Yours sincerely
Michelle Croker
Division Head
Portfolio Strategy Division
11 July 2025
OFFICIAL
Attachment A
REASONS FOR DECISION
What you requested
On 28 May 2025, your revised request sought access to the following:
“Under the FOI Act, I would like to request a list of all Ministerial submissions provided
by the department to the Minister for Climate Change and Energy and the Assistant
Minister for Climate Change and Energy since the May 2025 election. I request it in the
following format:
Date of submission,
Subject
PDR number.”
Primary Decision
On 13 June 2025, the Primary Decision maker refused access to the one (1) document in scope
of your request as it contained deliberative matter the disclosure of which would be contrary to
the public interest (section 47C).
The Primary Decision sets out the reasons for the decision and how the exemption applied to
the document.
Request for Internal Review
On 16 June 2025, you applied for an internal review of the Primary Decision in the following
terms:
“I do not accept that a decision to exclude all information is appropriate given the
subject of the FOI. For example, there are titles of briefs that are not cabinet in
confidence that could be released under FOI, further the PDR number does not identify
the subject of the document or if it has, or is, destined for cabinet.
A more reasonable approach to this request would be to exclude the specific brief titles
are the exempt because they are cabinet documents or another such legal exemption
applies.”
What I took into account
In reaching my decision, I took into account:
your original request dated 28 May 2025;
the Primary Decision dated 13 June 2025;
your internal review request dated 16 June 2025;
the document that falls within the scope of the internal review;
OFFICIAL
information about:
o the nature of the documents; and
o the department’s operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines); and
the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act in relation to your request.
I have decided to vary the Primary Decision to refuse access to the relevant document under
section 47C. Upon review of the document and having formed my own view I have decided that
part of the document requested can be released, however, the remainder of the information is
exempt under section 47C.
My findings of fact and reasons for varying the Primary Decision in part are set out below.
Section 47C – Deliberative processes
I have applied the conditional exemption in section 47C to the relevant document.
Section 47C of the FOI Act provides:
‘A document is conditionally exempt if its disclosure under this Act would disclose
matter (deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation that
has taken place, in the course of, or for the purposes of, the deliberative processes
involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.’
Paragraph 6.54 of the Guidelines relevantly provides:
A deliberative process involves the exercise of judgement in developing and making a
selection from different options:
The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have bearing
upon one’s course of action. In short, deliberative processes involved in the
functions of an agency are thinking processes – the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a
course of action.
OFFICIAL
link to page 4 link to page 4
As noted in the Primary Decision, the term deliberative matter has been stated as being a
shorthand term for opinion, advice, recommendation(s), consultation and deliberation that is
recorded or reflected in a documen
t1.
The document subject to this request contains information about ministerial submissions sent
to the Offices of the Minister for Climate and Energy and the Assistant Minister for Climate
Change and Energy shortly after the May 2025 Federal Election.
This document details the subject matter of the ministerial submissions put forward for
consideration in the period shortly after the election. If released, this information has the effect
of outlining and summarising the issues and decisions put to both Minster’s Offices that were
considered important in the early days of the new government.
On this basis, I am satisfied the document in scope of this request contains deliberative matter
for the purposes of section 47C(1) of the FOI Act. I am further satisfied that parts of the
document are conditionally exempt under section 47C(1) of the FOI Act.
I note that section 47C(2)(b) of the FOI Act provides that deliberative material
does not include
purely factual material. However, the Guidelines state that 'purely factual material’ does not
extend to factual material that is an integral part of the deliberative content and purpose of a
document, or, is embedded in or intertwined with the deliberative content such that it is
impractical to excise it.
Furthermore, the Guidelines provide that ‘the purpose of providing access to government
information under the FOI Act may not be served if extensive editing is required that leaves only
a skeleton of the former document that conveys little of its content or substance.’
I acknowledge and agree with the Primary Decision that factual material may be present in the
document. However, I consider that the factual material is so interwoven with the deliberative
material that it would be both difficult to extract and would result in such a heavily redacted
document that it would be of little use.
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.'
When weighing up the public interest factors for and against disclosure under section 11A(5) of
the FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I
have considered the extent to which disclosure of the document would promote the objects of
the FOI Act.
I have also considered relevant factors weighing against disclosure, indicating that access would
be contrary to the public interest.
1 Parnell and Attorney Generals Department [2014] AlCmr 71.
OFFICIAL
Upon review of the material in scope of the request I agree that release of this information may
result in damage to the working relationship between the department and the
Minister/Assistant Minister and their Offices.
Where information reveals early or tentative thinking and would divulge what is considered a
priority and/or risk for a newly returned Minister/Assistant Minister, I consider release would
inhibit the ability for the department to efficiently and effectively develop and then maintain a
trusting working relationship with the new/returning Minister and their Office. The importance
of quickly establishing a trusting and effective relationship with Ministers/Assistant Ministers
in a new government has been dealt with through several tribunal and court cases, most notably
in relation to Incoming Government Briefs (
IGB).
Whilst I acknowledge and agree with the Primary Decision maker that this document is not an
IGB, a document listing submissions and priorities provided to the Minster/Assistant Minster in
the first three (3) weeks following the outcome of an election, serves a similar purpose.
As stated in the Primary Decision many of the briefs listed in the document are classified,
including as Protected Cabinet as well as classifications other than “Official”. Whilst the
protected classification of a brief may not be sufficient to attract the Cabinet exemption under
the FOI Act, divulging the titles of briefs drafted relating to subject matters with the potential for
Cabinet consideration in the future, or what matters the government considered to be a current
priority, may have the effect of undermining the confidentiality of the Cabinet process.
Further, the information contained I have decided remains exempt includes personal
information about identifiable individuals and references to external organisations and entitles.
Based on the above factors, I have decided that in this instance that the disclosure of parts of
this document containing deliberative material would, on balance, be contrary to the public
interest. I have not taken into account any of the irrelevant factors set out in section 11B(4) of
the FOI Act in making this decision.
OFFICIAL
