'BCI' and Australian Taxation Office (Freedom of information)

'BCI' and Australian Taxation Office (Freedom of information) [2026] AICmr 102 (21 October 2026)

In this recent decision Rocelle Ago, Acting Executive General Manager, Information Rights Division, delegate of the Australian Information Commissioner (the Delegate), discusses the application of s 47E(c) of the Freedom of Information Act 1982 (Cth) (the FOI Act) to a document recording a complaint against the FOI Applicant.

This decision is instructive as it concerns a class of request that is frequently received by Commonwealth agencies. Decisions made in respect of these types of requests are commonly progressed to internal review and Information Commissioner (IC) review given the highly motivated nature of the applicants.

Background

The Decision concerned a Freedom of Information request seeking access to:

[A named individual’s] Formal Complaint sent to: Employee Complaints [email address] on or about 21 May 2013.

The Australian Tax Office (ATO) identified one document in scope of the request and refused access to it pursuant to the conditional exemption in s 47E(c) of the the FOI Act.

The decision to refuse access was affirmed on internal review. The Applicant subsequently sought IC review.

Section 47E(c) – disclosure would have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency

Section 47E(c) provides that a document is conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency

The document in issue contained details of a complaint against the Applicant made by a colleague during the Applicant’s former employment with the ATO, alleging inappropriate behaviour on the part of the Applicant.

In considering the parties’ submissions, the Delegate did not accept the Applicant’s submissions that it was a ‘standard administrative instrument’ given the details and personal information it contained.

The Delegate identified as established law that candour is essential when an agency seeks to investigate staff complaints, and that candour may be prejudiced if staff are aware that any information provided could be released through the FOI Act.

The Delegate accepted the ATO’s submissions that disclosure of the document could reasonably be expected to have a substantial adverse effect on the ATO’s management of its personnel, in that disclosure would reduce the ATO’s ability to obtain information about workplace issues and in turn, to address those matters.

The Applicant submitted that he held an ‘irregular’ copy of the document and required a verified copy as an accurate administrative record. As no evidence was provided relating in support of this submission it was given little weight by the Delegate.

The Delegate was therefore satisfied that the document in issue was conditionally exempt under s 47E(c) of the FOI Act.

Was disclosure contrary to the public interest?

For the conditional exemption in s 47E(c) to apply, disclosure must be contrary to the public interest as per s 11(5) of the FOI Act.

The Delegate considered the following factors in support of disclosure:

• Disclosure would promote the objects of the FOI Act and allow the Applicant access to their personal information.

The Delegate considered the following factors against disclosure:

• There was strong public interesting in protecting the ability of the ATO to manage staff in the context of employment complaints and to maintain confidentiality during and following those processes.
• The emotional distress that would be caused to the other individuals involved in the complaint.

The Applicant’s submissions toward promoting scrutiny of the ATO’s disciplinary processes were given little weight since the document in issue contained little information about those processes.

The Applicant’s submissions that disclosure was in the public interest to uphold the principles of procedural fairness were given little weight, given the time that has elapsed since the events in question occurred and the fact that processes under the FOI Act are not intended to replace the discovery process in court and tribunal proceedings.

Based on the above outlined considerations, the Delegate was therefore satisfied that the potential harm of disclosure outweighed the public interest in favour of disclosure.

On balance, the Delegate found that the public interest factors against disclosure of the information outweighed the factors favouring disclosure. The Delegate found that it would be contrary to the public interest to release this information at this time.

Key takeaways

This decision demonstrates the types of submissions that an agency may consider making that demonstrate that the s 47E(c) conditional exemption applies and that disclosure is against the public interest.

Namely, as in this case, agencies should consider highlighting the following points where applicable:

• The emotional distress that the request would cause to the other individuals involved in the complaint.
• The effect that disclosure would have on the confidentiality of complaint resolution processes and the importance of confidentiality to the full and frank participation of individuals in those processes.
• The extent to which disclosure would discourage individuals from raising workplace issues, prejudice the agency’s ability to obtain related information, and have an adverse effect on an agency’s  personnel management functions.
• Where relevant, the age of a complaint and the importance of the finality of concluded workplace complaint processes.
• Where relevant, the contents of a complaint not containing any information on the agency’s process for handling complaints.

If your agency requires advice or assistance with the processing of FOI requests, or managing IC review matters, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.