Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Applicant
Decision on your Freedom of Information Request
I refer to your request of 1 January 2020 via the Right to Know website, seeking access to documents under the
Freedom of Information Act 1982 (FOI Act).
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Your request
On 1 January 2020, you requested access to:
note, report, email and its attachment to/from/cc applicant and staff, screenshot showing data from
the database, application and its supporting material/attachment excluding game
NEED FOR SPEED HEAT (2019, Multi Platform)
CALL OF DUTY: MODERN WARFARE (2019, Multi Platform)
HUNT: SHOWDOWN (2019, Multi Platform)
GEARS 5 (2019, Multi Platform)
note, report, screenshot showing data from the database, application and its supporting
material/attachment excluding game and video
PLANETSIDE ARENA (2019, Online)
APEX LEGENDS (2018, Multi Platform)
BATTLEFIELD V (2018, Multi Platform)
ARMA 3 (2013, Multi Platform)
PLANETSIDE 2 (2012, Multi Platform)
CRYSIS 3 (2012, Multi Platform)
note, report, screenshot showing data from the database, application and its supporting
material/attachment excluding film
THE NUTCRACKER AND THE FOUR REALMS (2019, Blu-Ray)
THE NUTCRACKER AND THE FOUR REALMS (2018, DCP)
BATTLE LOS ANGELES (2011, 35 mm)
BATTLE LOS ANGELES (2011, Blu-Ray + DVD)
decision report
SORRY TO BOTHER YOU (2018, DCP)
HOBO WITH A SHOTGUN (31 May 2011, DVD)
HOSTEL PART II (2007, DVD for 35mm)
SAW 3D (2010, 35 mm)
ZERO DARK THIRTY (2013, DCP)
GPO Box 594, Canberra ACT 2601, Australia
1800 075 001 infrastructure.gov.au | arts.gov.au
A CURE FOR WELLNESS (2016, DCP)
The applicant details for Hunt: Showdown might be Jens Schäfer, xxxx@xxxxxx.xxx, 49692197766. The
applicant details for Battlefield V might be Missy Bedio, xxxxxx@xx.xxx. Some of the names
appearing in email for Call of Duty: Modern Warfare might be Allen Corona, Ben Perry, Chris Wilson,
Eden Millard, Henry Zurawski, Jack Kleckner, Jeremy Anderson, Miles Winzeler, Misty Noor, Paul Virgin,
Todd Mueller, William Cranmer.
Personal information of junior ministerial staff and Departmental officers below the Senior Executive
Service (SES) level, mobile phone numbers and signatures of Departmental SES officers are not
excluded from the scope of this request. Unsigned duplicates are fine for films I want only decision
report of if it is faster to search and retrieve them.
Try not to redact the first 6 digits (or the BIN) of the credit card number, country code of the phone
number, domain of the e-mail address.
Screenshot showing data from the database means the image of the application displaying information
about the film or game. It has more information than what is publicly accessible at
www.classification.gov.au . Some of the texts might be hidden, those texts can be given separately.
There may be links to other documents, those documents can be given separately.
On 8 January 2020, the then Department of Communications and the Arts wrote to you advising that it did not
consider that your request met the requirements of the FOI Act as the documents you are requesting are not
clearly identified.
On 8 January 2020, you responded revising your request to the following:
Note, report, email and its attachment to/from/cc/bcc applicant and staff, screenshot showing data
from the database, application and its supporting material/attachment excluding game for NEED FOR
SPEED HEAT (2019, Multi Platform), CALL OF DUTY: MODERN WARFARE (2019, Multi Platform),
HUNT: SHOWDOWN (2019, Multi Platform),
GEARS 5 (2019, Multi Platform).
Note, report, screenshot showing data from the database, application and its supporting
material/attachment excluding game and video for PLANETSIDE ARENA (2019, Online), APEX LEGENDS
(2018, Multi Platform), BATTLEFIELD V (2018, Multi Platform), ARMA 3 (2013, Multi Platform),
PLANETSIDE 2 (2012, Multi Platform), CRYSIS 3 (2012, Multi Platform).
Note, report, screenshot showing data from the database, application and its supporting
material/attachment excluding film for THE NUTCRACKER AND THE FOUR REALMS (2019, Blu-Ray), THE
NUTCRACKER AND THE FOUR REALMS (2018, DCP), BATTLE LOS ANGELES (2011, 35 mm), BATTLE LOS
ANGELES (2011, Blu-Ray + DVD).
Decision report for
SORRY TO BOTHER YOU (2018, DCP),
HOBO WITH A SHOTGUN (31 May 2011, DVD),
HOSTEL PART II (2007, DVD for 35mm),
SAW 3D (2010, 35 mm),
ZERO DARK THIRTY (2013, DCP),
A CURE FOR WELLNESS (2016, DCP).
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On 20 February 2020, the Office of the Australian Information Commissioner (the OAIC) notified the
Department that an anonymous individual has requested the Information Commissioner review a deemed
decision of the Department to refuse access to documents.
On 20 February 2020, the Department responded to the OAIC indicating that it did not consider your request
met the requirements of the FOI Act and that the request was invalid.
On 3 November 2020 the Department issued a notice under section 24AB of the FOI Act indicating that the
request was unclear and too broad.
On 16 November 2020, you responded with the following:
I revise the request to the classifier note, screenshot showing data from the database, application for
content classification and its supporting material/attachment excluding game or film for:
HUNT: SHOWDOWN {2019, Multi Platform),
GEARS 5 {2019, Multi Platform),
PLANETSIDE ARENA {2019, Online),
APEX LEGENDS {2018, Multi Platform),
ARMA 3 {2013, Multi Platform),
PLANETSIDE 2 {2012, Multi Platform),
CRYSIS 3 {2012, Multi Platform),
THE NUTCRACKERAND THE FOUR REALMS(2019, Blu-Ray),
THE NUTCRACKER AND THE FOUR REALMS (2018,.DCP},
BATTLE LOS ANGELES (2011, 35 mm),
BATTLE LOS ANGELES (2011, Blu-Ray and DVD).
Decision report for
Sorry to Bother You (2018,DCP)
Hobo with a Shotgun (31 May 2011, DVD)
Hostel Part II (2007, DVD for 35mm)
Saw 3D (2010, 35mm)
Zero Dark Thirty (2013, DCP)
A Cure for Wellness (2016, DCP)
On 23 November 2020, you were notified that your request in its current form was too voluminous to process
and you were invited to consult with us on the scope of the request and on 7 December 2020, you responded
advising of your intentions to seek a review by the Information Commissioner.
On 21 December 2020, the Department issued a decision under section 24 of the FOI Act, notifying you that
your request had been refused on the basis that a practical refusal reason existed.
On 24 December 2020, the OAIC advised that you wished to proceed with the IC Review.
On 5 March 2021, the OAIC requested information from the Department in relation to your request, and on
16 April 2021, the Department responded to that request.
On 20 September 2023, the OAIC wrote to the Department requesting further information in relation to this
matter.
The Department undertook consultation with the Classification Board (the Board), which is responsible for the
documents captured by your request, and a view was taken that the request would be transferred to the Board
and that a revised decision would be issued under section 55G of the FOI Act.
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The Department, which provides administrative support to the Board in relation to the processing of FOI
requests, notified the OAIC that the Board was in a position to issue a revised decision under section 55G of the
FOI Act.
2
Authority to make decision
On 17 November 2023, the OAIC issued a decision under s 55K of the FOI Act, setting aside the deemed access
refusal decision made by the Department on 31 January 2020 and directing the Department to process your
revised request and to notify you of a decision within 30 days after it received that decision.
Section 55N of the FOI Act provides that the Department must comply with a decision of the Information
Commissioner under section 55K on an IC Review.
As indicated above, the Board, is responsible for the documents captured by your request, and as such, the
request has been transferred to the Board for a decision on access to be finalised.
I am authorised to make a decision in relation to Freedom of Information requests under section 23(1) of the
FOI Act.
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Decision
The Department provides secretariat services to the Board. As such, on behalf of the Board, the Department
has undertaken reasonable searches for documents which would be relevant to your request, and has identified
53 documents in the possession of the Board which are captured by your request.
In relation to these documents, I have decided to:
• grant access in full to relevant information in 29 documents
• grant partial access to 24 documents
A schedule setting out the documents relevant to your request, with my decision in relation to those
documents, is at
ATTACHMENT A.
In relation to documents regarding the title ‘Crysis 3’, reasonable searches have been conducted of the Board’s
information holdings, including Outlook, Records Workspace and relevant computer drives. No documents
matching the description of classifier note, screenshot showing data from the database, application for content
classification and its supporting material/attachment for Crysis 3 were located.
Section 24A of the FOI Act provides that the Board may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document, and
(b) the agency or Minister is satisfied that the document:
(i)
is in the agency's or Minister's possession but cannot be found, or
(ii)
does not exist.
I am satisfied that all reasonable steps have been taken to find documents which would be relevant to this part
of your request and that the documents cannot be located. As such, I have decided to refuse the part of your
request seeking access to documents regarding the title ‘Crysis 3’ in accordance with section 24A of the FOI Act,
on the basis that the Board does not hold a document in its possession that meets the terms of this particular
part of your request.
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Finding of facts and reasons for decision
My findings of fact and reasons for deciding that exemptions apply to parts of documents relevant to your
request are set out below.
4.1 Section 47F – Documents affecting personal privacy
Section 47F of the FOI Act provides that a document is conditionally 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. Specifically, 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’ includes personal information about a number of
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 following matters:
(a) the extent to which the information is well 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.
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 s11A(5), which follows 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:
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... whether a disclosure is ‘unreasonable’ requires … a consideration of all 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 following reasons:
• the conditionally exempt personal information is not well known
• the person to whom the personal information relates is not known to be (or to have been) associated
with the matters dealt with in the document
• the conditionally exempt personal information is not available from publicly accessible sources
• the individuals whose personal information is contained in the documents are identifiable
• no further public purpose would be achieved through the release of the personal information
• the FOI Act does not control or restrict any subsequent use or dissemination of information released
under the FOI Act.
I have consulted with affected third parties regarding the disclosure of their personal information, and I have
considered any concerns raised by those individuals during the course of making my decision.
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For the reasons outlined above, I decided that parts of the documents marked ‘s47F’ are conditionally exempt
from disclosure under section 47F of the FOI Act.
Where information is found to be conditionally 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.
4.2 Section 47G – Business information
Section 47G of the FOI Act provides that a document is conditionally exempt if its disclosure would disclose
information concerning a person in respect of his or her business or professional affairs or concerning the
business, commercial or financial affairs of an organisation or undertaking, would, or could reasonably be
expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional
affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs.
Business information
Paragraph 6.184 of the FOI Guidelines states that the conditionally exempt information must have some
relevance to a person in respect of his or her business or professional affairs or to the business, commercial or
financial affairs of an organisation or undertaking.
Paragraph 6.192 of the FOI Guidelines further states that the use of the term ‘business or professional affairs’
distinguishes an individual’s personal or private affairs and an organisation’s internal affairs. The term ‘business
affairs’ has been interpreted to mean ‘the totality of the money-making affairs of an organisation or undertaking
as distinct from its private or internal affairs’.
Parts of documents 36 and 44 marked ‘s47G’ contain business affairs information that is relevant to the
business, commercial or financial affairs of an organisation or undertaking. This information is relevant to the
profitability and financial viability of an organisation or undertaking, and does not relate to its private or internal
affairs.
As such, I am satisfied that this information is business information.
Unreasonable adverse effect of disclosure
Paragraph 6.187 of the FOI Guidelines states that the presence of ‘unreasonably’ in section 47G(1) implies a
need to balance public and private interests. The public interest, or some aspect of it, will be one of the factors
in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is
unreasonable. I must therefore balance the public and private interest factors to decide whether disclosure is
unreasonable for the purposes of section 47G(1)(a); but this does not amount to the public interest test of
section 11A(5) which follows later in the decision process.
Paragraph 6.188 of the FOI Guidelines goes on to state that the test of reasonableness applies not to the claim
of harm but to the objective assessment of the expected adverse effect. I must balance the public interest
against a private interest of the affected third parties, preserving the profitability of a business.
I am satisfied that the disclosure of the business affairs information would result in an adverse effect on the
business, commercial or financial affairs of an organisation or undertaking. I have also had regard to the public
and private interest factors, and I am satisfied that the preservation of the profitability and ongoing viability of
the affected third-party business outweighs the public interest in the disclosure of this information.
I have consulted with the affected third party regarding the relevant business affairs information, and in making
my decision, I have considered submissions made.
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For the reasons outlined above, I decided that parts of documents 36 and 44 marked ‘s47G’ are conditionally
exempt from disclosure under section 47G of the FOI Act.
Where information is found to be conditionally 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.
4.3 Public interest considerations
Pursuant to section 11A(5) of the FOI Act, I must give access to conditionally 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 conditionally 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 will often depend on a balancing of interests
• necessarily broad and non-specific and
• relates to matters of common concern or relevance to all 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 conditionally exempt information in the
public interest include whether access to that information would do any of the following:
• promote the objects of the FOI Act (including all matters set out in sections 3 and 3A)
• inform debate on a matter of public importance
• promote effective oversight of public expenditure
• allow a person to access his or her own personal information.
Having regard to the above, I consider that disclosure of the conditionally 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
• would not promote effective oversight of public expenditure
• would not allow you access to your own personal information.
Factors weighing against disclosure
I consider that the following factors weigh against disclosure of the conditionally exempt information at this
time, on the basis that disclosure:
• could reasonably be expected to prejudice the protection of a number of individuals’ right to personal
privacy
o The Board is committed to complying with its obligations under the
Privacy Act 1988, which sets
out standards and obligations that regulate how we must handle and manage personal
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information. I consider it is firmly in the public interest that we uphold the rights of individuals to
their own privacy and meet our statutory obligations under the Privacy Act.
o I note that the substance of the information that is relevant to your request has been released to
you and disclosure of the conditionally exempt personal information would not provide you with
any further insight into the workings of government beyond that substantive information.
• could reasonably be expected to prejudice the commercial or financial affairs of an organisation or
undertaking which would impact on the profitability and financial viability of those organisations or
undertakings
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 conditionally exempt information could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the Commonwealth Government
(b) access to the conditionally 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 conditionally 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 all public interest factors for and against disclosure, I decided
that, on balance, disclosure of the conditionally exempt information would be contrary to the public interest. I
am satisfied that the benefit to the public resulting from disclosure of the conditionally exempt information is
outweighed by the benefit to the public of withholding that information.
4.4 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 allows an
agency to delete such material from a document.
The documents contain personal identifiers of public servants. When your request was received, you notified
the Board that personal information of public servants below the SES level and all email addresses, signatures
and direct telephone numbers could be considered irrelevant to the scope of your request. 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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Material taken into consideration
In making my decision, I had regard to the following:
• the terms of your request
• the content of the documents captured by your request
• the provisions of the FOI Act
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• the guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the FOI Guidelines)
• advice from departmental officers with responsibility for the subject matter contained in the
documents captured by your request
• submissions from third parties consulted about documents which contain information concerning
them
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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
This decision is made at the Direction of the Information Commissioner under s 55K of the FOI Act.
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Publication of material released under the FOI Act
Where I have decided to release documents to you, we may also publish the released material on our Disclosure
Log. We will not publish personal or business affairs information where it would be unreasonable to do so.
For your reference our 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 provides
administrative assistance to the Board in relation to FOI matters. If you require further information regarding
this decision, please contact the Department’s FOI Section at xxx@xxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Fiona Jolly
Director
Classification Board
Date: 18 December 2023
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