Case note: Andrzejewski and Secretary, Department of Industry, Science and Resources (Practice and Procedure)

Andrzejewski and Secretary, Department of Industry, Science and Resources (Practice and Procedure) [2025] ARTA 223

Focus:  Confidentiality Application in ART Proceedings

This interlocutory decision relates to Freedom of Information (FOI) proceedings which we understand are currently before the Administrative Review Tribunal (ART). This decision does not deal with the ART’s substantive consideration of the FOI documents at issue.

We understand that Applicant has made an interlocutory application requesting that the Tribunal make confidentiality orders under s 70 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). Whilst the Applicant initially requested orders which would protect the disclosure of her identity, this was later clarified to confirm that she was requesting orders, which would prohibit or restrict the publication of other information about the proceedings more generally. 

The Respondent Agency opposed this application on the basis that the Applicant had not identified any harm or prejudice that would result from her identity and other information being made publicly available. The Agency also submitted that the outcome of a Tribunal review may be relevant to other government agencies who might receive FOI requests involving a similar subject matter and therefore the publication of the decision would be an important contribution to FOI precedent. 

While the Tribunal acknowledged the Applicant held genuine concerns about her FOI request being publicly known, the Tribunal confirms that the factors set out in s 71 of the ART Act clearly state that it is desirable for proceedings and evidence to proceed through the Tribunal in an open and publicly available forum. 

In the absence of any specific submissions or evidence from the Applicant, the Tribunal was “unable to find that harm is likely to occur’” should the matter proceed in a public forum. 

Key takeaways

1. Should an Agency not be minded to consent to a confidentiality order, this decision and its balancing of s 71 of the ART Act with the parties' submissions, will provide helpful precedent to refer to in in future submissions. Particularly, Agencies should consider what harm would, or could, reasonably be expected to arise upon disclosure of the information subject to any confidentiality application. 
2. We note that Agency’s should also carefully consider the extent of the confidentiality being requested (i.e. is the other party requesting that their name is anonymised or like in this case, are they seeking a confidentiality order over the whole proceeding). If the request is the latter, we encourage Agencies to consider what effect such an order may have on the accumulation of FOI precedent in the ART.