Comprehensive FOI resource (Commonwealth Freedom of Information Act 1982), drawn from project review of three decisions: Patrick and Secretary, Department of Prime Minister and Cabinet [2020] AATA 4964; Rex Patrick and Department of Industry, Science, Energy and Resources [2021] AICmr 14; and Rex Patrick and Department of Defence [2019] AICmr 19. This is written to be portable into any future chat where an FOI request, internal review or IC review is on foot.
How to use this resource
As a reference when working on an FOI application, a refusal, an internal review, or an IC review or AAT application. It sets out the statutory framework, the tests that actually apply, the relevant evidentiary standards, and the case authority behind each, so that any agency response can be tested against it rather than accepted at face value.
1. The legislative framework
- The objects of the FOI Act (s 3) are to give the Australian community access to government held information, by requiring agencies to publish information and by providing a right of access to documents, in order to promote informed participation in government and scrutiny of government activity.
- Section 11(1) gives every applicant a legally enforceable right of access to a document of an agency, or an official document of a Minister, unless it is an exempt document. (Note: “person” here is the Act’s own statutory term and is reproduced as such.)
- A document is only exempt for the purposes of Part IV if either: (a) it is exempt under Division 2 (absolute exemptions), or (b) it is conditionally exempt under Division 3, and access would, on balance, be contrary to the public interest (s 31B).
- The pro disclosure principle in the objects of the Act is given specific effect in the public interest test in s 11A(5), which is weighted toward disclosure, not neutral.
2. Absolute exemptions versus conditional exemptions, why the distinction matters
- Division 2 exemptions (for example s 33, security/defence/international relations, and s 34, Cabinet documents) are absolute. If the statutory criteria are met, the decision maker (and the Tribunal on review) has no discretion to order release regardless of any public interest in disclosure. Section 58(2) confirms the Tribunal cannot permit disclosure once satisfied a Division 2 exemption applies.
- Division 3 exemptions (s 47C deliberative process, s 47D Commonwealth financial/property interests, s 47E certain operations of an agency, s 47F personal privacy, s 47G business affairs) are conditional. Meeting the substantive test is only step one. Step two is the separate public interest test under s 11A(5): the document must still be released unless access would, on balance, be contrary to the public interest.
- Always identify which Division an agency’s claimed exemption sits in. A conditional exemption that the agency has not separately addressed under s 11A(5) is incomplete and challengeable on that basis alone.
3. The causative element, the core test for harm based exemptions
Sections 33, 47D, 47E and 47G(1)(a) each require a genuine causal connection between disclosure and a specific harm. The relevant phrase is “would, or could reasonably be expected to” cause the stated effect.
- This is an objective, evidence based test. Following Kioa v West (1985) 159 CLR 550, the question is whether the expectation of harm is reasonably based, not whether harm is merely possible, conceivable, or asserted.
- “Could” is less stringent than “would,” but still requires a reasonable expectation, not certainty, of an effect having occurred, presently occurring, or likely to occur in future (FOI Guidelines [5.17]).
- An agency cannot rely on bare assertion. The particulars of the predicted harm should be identified and explained in the statement of reasons (FOI Guidelines [6.101], [6.103]).
- Self-serving opinion evidence from an interested party (for example a contractor or senior officer simply asserting that release “would be damaging”) is not, on its own, the kind of evidence needed to sustain an exemption claim (see the Tribunal’s treatment of witness evidence in AATA 4964, citing Re Ewer and Australian Archives (1995) 38 ALD 789).
4. Public domain information is a powerful tool against harm claims
A recurring and decisive principle across the authorities: if the substance of what is being withheld duplicates, overlaps with, or is readily inferable from material that is already public (elsewhere in the same document, in court filings, in media reporting, or in other official releases), an agency cannot reasonably maintain that further disclosure causes additional, material harm. Disclosure of material that is “not of a materially different nature” to what is already public will, or could reasonably be expected to, have no additional causative effect.
Practical step: before accepting any harm based refusal, check what the agency, a related party, or the media has already made public on the same subject. Inconsistency between what has been released and what is withheld undermines the refusal.
5. Exemption by exemption summary
| Provision | Type | Core test | Key principle |
|---|---|---|---|
| s 33 | Absolute (Division 2) | Disclosure would, or could reasonably be expected to, cause damage to security, defence or international relations of the Commonwealth | No public interest override if established; causation must be real, not speculative; existing public domain information defeats most claims |
| s 34 | Absolute (Division 2) | Document is, or contains an extract from, a genuine Cabinet submission, briefing or record | Purely factual material is not exempt under s 34(6) unless it would reveal an undisclosed Cabinet deliberation or decision; a bare meeting date or title is not enough (Dreyfus and Attorney-General [2015] AATA 995) |
| s 47C | Conditional (Division 3) | Document discloses deliberative matter (opinion, advice, recommendation, consultation, deliberation) prepared for a deliberative purpose, and is not purely factual | A final report, conclusion, or factual record is not deliberative matter, even if authored by an expert and even if it expresses a professional judgement; only genuine “internal thinking documents” qualify |
| s 47D | Conditional (Division 3) | Disclosure would have a substantial adverse effect on the financial or property interests of the Commonwealth or an agency | Same causative standard as s 33; requires real, evidenced effect, not assumption |
| s 47E(d) | Conditional (Division 3) | Disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of an agency’s operations | “Substantial” means real and significant, not nominal; broad non-statutory functions (such as community consultation) can count as “operations,” but generic claims about reduced candour carry little weight without specific evidence |
| s 47F | Conditional (Division 3) | Document contains personal information, the disclosure of which would be unreasonable | Once identifying details are validly excised, remaining material may no longer be “personal information” at all |
| s 47G(1)(a) | Conditional (Division 3) | Disclosure would unreasonably affect a person, organisation or undertaking in its lawful business, professional, commercial or financial affairs | Same causative standard as s 33 and s 47D |
6. The public interest test (s 11A(5))
Applies only after a document is found conditionally exempt under Division 3.
- The question is whether, on balance, the benefit to the public of disclosure is outweighed by the benefit of withholding, assessed on the facts at the time of the decision, not at the time the document was created.
- Factors favouring disclosure typically include: promoting the objects of the FOI Act, revealing the reasons and context for a government decision, enhancing scrutiny of government decision making, and informing debate on a matter of public importance.
- Factors against disclosure must be specific to the actual document and actual likely effect, not generic. Common but weak agency arguments include: a general claim that openness will reduce “frank and candid” advice, or that release will discourage future engagement, without evidence tied to the particular material.
- A finalised process, or a decision that has already been publicly announced, weighs toward disclosure of related deliberative material, since the sensitivity that might originally have justified withholding has diminished.
- If conditionally exempt material can be released without appreciable harm, that itself indicates release would not be contrary to the public interest.
7. Onus of proof
In an IC review of a refusal, the agency bears the onus of establishing that its decision is justified (s 55D(1)). An applicant does not need to prove the absence of harm; it is enough to identify where the agency’s reasoning is general, unparticularised, speculative, or unsupported by evidence specific to the withheld material.
8. Practical checklist when reviewing a refusal
- Which Division is the claimed exemption in, absolute or conditional? If conditional, has the agency separately addressed the public interest test, or only the substantive exemption?
- Has the agency identified specific, evidenced harm, or only a generic or assumed effect?
- Is any of the withheld material already public elsewhere, in the same document, related court or tribunal proceedings, or media coverage? If so, ask the agency to explain the inconsistency.
- If s 47C is claimed, does the material actually involve weighing up options, or is it a finished report, factual record, or concluded opinion?
- If s 34 is claimed, is the material genuinely an extract from a Cabinet document, or merely a reference to a meeting date or title that is otherwise purely factual?
- If s 47E is claimed, has the agency shown a substantial (not nominal) adverse effect on a specific operation, with particulars, rather than a general assertion about candour or future cooperation?
- Has the agency relied on opinion evidence from an interested witness without independent corroboration?
- Has the underlying process or decision already been finalised or announced? If so, this favours release of related deliberative material.
9. Core authorities (full citations)
- Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of information) [2020] AATA 4964 (9 December 2020), Deputy President Britten-Jones. Hawkei/Auditor-General audit report; ss 33, 47C, 47D, 47G(1)(a) all failed on the causative element and public domain overlap.
- Rex Patrick and Department of Industry, Science, Energy and Resources (Freedom of information) [2021] AICmr 14 (14 April 2021), Australian Information Commissioner Angelene Falk. Kimba/National Radioactive Waste Management Facility ministerial brief; illustrates the two-step conditional exemption process under ss 47C and 47E(d), and the s 47F personal information threshold.
- Rex Patrick and Department of Defence (Freedom of information) [2019] AICmr 19 (15 May 2019), Australian Information Commissioner Angelene Falk. Naval and Defence officer diaries; ss 34 and 47C both failed because diary entries were purely factual, with Dreyfus and Attorney-General (Commonwealth of Australia) [2015] AATA 995 applied.
Ei incumbit probatio qui dicit, non qui negat: proof lies on the one who asserts, not on the one who denies. In FOI practice, that burden remains with the agency throughout.
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