OFFICIAL
Our ref: FOI-2025-80163-IR
23 December 2025
Eilidh
By Email only:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Eilidh
Freedom of Information request- Internal review decision
1. On 5 December 2025, you requested a review of the decision made on the same day
in relation to your request for documents under the
Freedom of Information Act 1982
(
FOI Act).
2. I am an officer authorised under s 23 of the
FOI Act to make decisions in relation to
FOI requests.
The original decision and your request for review
3. Your original request for information was made in the following terms:
I refer to published submission 47 in relation to the Senate's inquiry into the quality of
governance at Australian higher education providers.
The submissions were made by Professor Peter Tregear OAM and can be accessed on
the submissions page of the inquiry page.
In his submissions, Professor Tregear refers to manner in which a delegate of the
Commonwealth Ombudsman terminated an investigation into the handling of a
whistleblower disclosure by the Australian National University, even though it would
appear that the Ombudsman's delegate appeared to agree that Professor Tregear had
been denied procedural fairness by the ANU's PID investigators.
In her decision to terminate the investigation, the delegate noted that she requested, "on
a number of occasions between April and August 2020", additional information from the
ANU to assist in her investigation but that the ANU ignored her requests.
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Under the FOI Act 1982 (Cth), I request access to each and every one of the delegates
requests, issued to the ANU "on a number of occasions between April and August 2020",
for further information from the ANU.
4. The original decision was to refuse access to the documents falling within the scope
of your request on the basis that they would be exempt pursuant to s37, s47E(d) and
47F of the
FOI Act.
5. You have requested review for the following reasons:
I have carefully read your reasons. Not one of the exemption that you claim
applies actually applies to the documents requested.
For that reason, I request internal review of your decision on each and every
ground that you have identified in your reasons. Please pass this request for
internal review to the person who conducts Freedom of Information reviews.
6. I have decided to
affirm the original decision to refuse access the documents under
ss 37, 47E and 47F of the
FOI Act.
7. As I have decided to affirm the original decision, I will not be providing a schedule of
documents or a copy of the documents as this will have been provided to you in the
original decision.
Material taken into account
8. In making my decision, I have considered:
a. Your application for internal review;
b. The scope of your FOI request (including any revision of that request);
c. The content of the documents that fall within the scope of your request;
d. Relevant provisions of the FOI Act; and
e. The Guidelines issued by the Office of Australian Information Commissioner
(
OAIC) under s 93A of the
FOI Act.
Reasons for Internal Review Decision
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Exemption – Documents affecting enforcement of law and protection of public safety:
s 37
9. Section 37 of the
FOI Act deals with documents affecting enforcement of the law.
Subsection 37(1)(b) of the
FOI Act provides that a document is exempt if disclosure
would, or could reasonably be expected to:
“disclose, or enable a person to ascertain, the existence or identity of a confidential
source of information, or the non - existence of a confidential source of information, in
relation to the enforcement or administration of the law
10. The FOI Guidelines at paragraph 5.108 provides that the exemption applies when:
• the information in question may enable the agency responsible for enforcing
or administering a law to enforce or administer it properly
• the person who supplies that information wishes their identity to beknown only
to those who need to know it for the purpose of enforcing or administering the
law
• the information was supplied on the understanding, express or implied, that
the source’s identity would remain confidential.
11. I have examined the documents that fall within the scope of this request and am
satisfied that they fall within this exemption. I am satisfied that they include
information that enables the Ombudsman to administer or enforce the Public Interest
Disclosure Act (
PID Act). Releasing Public Interest Disclosure (
PID) related material
would reveal or indicate the presence or absence of, a confidential information
source. It would also disclose information that was provided to our Office on a
confidential basis for the purposes of administering or enforcing the PID Act.
12. Section 37(2)(b) of the
FOI Act further provides that a document is exempt if
disclosure would, or could reasonably be expected to:
disclose lawful methods or procedures for preventing, detecting, investigating, or dealing
with matters arising out of, breaches or evasions of the law the disclosure of which would,
or would be reasonably likely to, prejudice the effectiveness of those methods or
procedures.
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13. The FOI Guidelines at paragraph 5.127 provides:
This exemption requires satisfaction of 2 factors. There must be a reasonable expectation
that a document will disclose a method or procedure and a reasonable expectation or a
real risk of prejudice to the effectiveness of that investigative method or procedure. If the
only result of disclosing the methods would be that those methods were no surprise to
anyone, there could be no reasonable expectation of prejudice. However, where a method
might be described as ‘routine’, but the way in which it is employed can reasonably be
said to be ‘unexpected’, disclosure could prejudice the effectiveness of the method.
14. I am satisfied that the documents you requested contain details about PID
investigative techniques and related correspondence, and that releasing this
information could reasonably be expected to significantly undermine the
effectiveness of the Ombudsman's PID investigative functions. In my view, disclosure
would alert the departments, agencies and authorities subject to Ombudsman
investigations, potentially enabling them to anticipate or evade the Ombudsman's
investigative processes.
15. I am satisfied that for these reasons above that the original decision maker was
correct in finding that the relevant documents are exempt under ss 37(1)(b) and
37(2)(b) of the
FOI Act.
Conditional exemption – Certain operations of agencies: s 47E
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. I have examined the documents within the scope of your request and am satisfied
that they include Ombudsman PID investigative material obtained in confidence
either through the Office’s compulsory information-gathering powers or voluntarily
provided by individuals.
18. Paragraph 6.114 of the FOI Guidelines provides:
The conditional exemption may also apply to a document that relates to a complaint
made to an investigative body. Disclosure of this type of information could reasonably
affect the willingness of people to make complaints to the investigative body, which would
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have a substantial adverse effect on the proper and efficient conduct of the investigative
body’s operations. Further, disclosure of information provided in confidence by parties to
a complaint or investigation 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
19. I consider that releasing of any relevant documents of this kind would adversely affect
the Office’s PID investigative functions by discouraging individuals from making
complaints or sharing information, and by reducing the openness of agencies when
dealing with our Office. I am satisfied that this would have a substantial adverse effect
on the Ombudsman's investigative processes.
20. In addition, , the Information Commissioner in
'ANX' and Commonwealth
Ombudsman (Freedom of information) [2024] AICmr 204 (20 September 2024) and
Paul Hayes and Commonwealth Ombudsman (Freedom of information) [2025]
AICmr 80 (2 May 2025) recognised that releasing this type of information would
conflict with the Ombudsman Act and restrict the Ombudsman's ability to access
confidential information. I am satisfied that the circumstances in
AMX and
Paul Hayes are comparable to this matter.
Is disclosure in the Public interest?
21. I must now consider whether the original decision maker considered whether it was
in the public interest to withhold release of the documents relevant to your FOI
request. 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.
22. 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].
23. I am satisfied that that the public interest factors favouring disclosure include that
disclosure would promote the objects of the
FOI Act by informing the community of
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the operations of the Government and enhancing the scrutiny of government
decision making.
24. However, I am also satisfied that the factors against disclosure include that disclosure
of confidential investigative material could reasonably be expected to have a
substantial adverse effect on the proper and efficient conduct of the Ombudsman.
25. Furthermore, I am satisfied releasing this information would adversely affect the
Ombudsman’s ability to obtain information from agencies in the future and would
consequently hamper the Ombudsman’s investigative operations.
26. I am satisfied that the original decision maker correctly gave considerable weight to
the proper and efficient conduct of Ombudsman investigations not being impeded.
Specifically, that PID disclosers and complainants are not discouraged from coming
forward due to release of their personal information or complaint/s and that
government agencies’ willingness to provide information is not hampered due to the
release of information obtained on a confidential basis. I have also given significant
weight to the maintenance of confidentiality.
27. I am satisfied that the factors not favouring disclosure outweighed the factors
favouring disclosure of the relevant documents. I am therefore, satisfied that the
original decision maker was correct in finding that this material is not required to be
disclosed because disclosure at this time would be, on balance, contrary to the public
interest.
Conditional exemption - Personal privacy: s 47F
28. Section 47F of the
FOI Act conditionally exempts a document to the extent that its
disclosure would involve the unreasonable disclosure of personal information about
any person.
29. Subsection 4(1) of the
FOI Act states that personal information has the same meaning
as in s 6 of the
Privacy Act 1988 (Cth). Personal information is defined as:
Information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information is true or not, and
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(b) whether the information is recorded in a material form or not.
30. I am satisfied that the relevant documents contain personal information in the form
of third-party names, complaint details and contact details as well as junior
Ombudsman staff or other government agency staff last names and direct contact
details. I am satisfied that the relevant information is personal information under s 4
of the
FOI Act.
31. I note that the personal information in these documents do not relate to you. This is a
matter of personal privacy for those relevant individuals. As you are not the PID
discloser, you are not privy to this information.
Is disclosure in the Public interest?
32. I must now consider whether the original decision maker considered whether it was
in the public interest to withhold release of the documents relevant to your FOI
request. 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.
33. 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].
34. I am satisfied that I have not identified any additional public interest factors
supportive of disclosing personal information which has been captured by this
request. I am satisfied that disclosure would not otherwise increase scrutiny,
discussion or comment around decision making or increase public participation in
Government processes.
35. I am satisfied that the factors not favouring disclosure, that the original decision
maker identified are correct and include:
• the disclosure could reasonably be expected to prejudice the protection of
third parties and government agency staff member’s right to privacy;
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• the disclosure could reasonably be expected to impede the Ombudsman's
health and safety obligations under the
Work Health and Safety Act 2011(Cth),
by exposing staff to unsolicited contact;
• the disclosure of personal information in the form of complaint details would
undermine the effectiveness of the Ombudsman’s investigative functions by:
o discouraging complainants, PID disclosers, and members of the public
from seeking the assistance of our Office out of concern that relevant
investigation information will not be kept confidential; and
o discouraging other public sector agencies from providing information
to the Ombudsman in response to an investigation; and
• the fact that such information is not on the public record or otherwise available
from publicly accessible sources.
36. I am satisfied that the original decision maker gave considerable weight to the factors
not favouring disclosure. I am also satisfied that those factors not favouring
disclosure outweighed the factors favouring disclosure of the relevant documents.
37. Therefore, pursuant to subsection 11A(5) of the
FOI Act, therefore I am satisfied that on
balance, that disclosure of the relevant documents would not be in the public interest.
I am satisfied that the original decision maker was correct to withhold access to the
relevant information pursuant to s 47F of the
FOI Act.
Review rights
Information Commissioner review or complaint
38. 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.
39. 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.
40. 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
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with the way your request was processed. It should also identify the Ombudsman’s
Office as the agency about which you are complaining.
41. You can make an IC review application or make an FOI complaint in one of the
following ways:
• online at https://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.
42. More information about the Information Commissioner reviews and complaints is
available at its website:
www.oaic.gov.au/freedom-of-information/foi-review-
process.
Yours sincerely,
T. Wong
Legal Director
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Document Outline
