Case note: 'ATT' and Department of Agriculture, Fisheries and Forestry (Freedom of Information)

‘ATT’ and Department of Agriculture, Fisheries and Forestry (Freedom of Information) [2025] AICmr 22 (30 January 2025)

Focus exemption: Section 45 of the FOI Act (material obtained in confidence)

This recent decision provides a practical example of the various factors that a decision-maker needs to consider when applying s 45.

Section 45 provides for the exemption of material which if disclosed ‘would found an action, by a person (other than an agency of the Commonwealth), for breach of confidence’.

As outlined in the FOI Guidelines, to reach the conclusion that such a breach would occur, the following five criteria must be satisfied:

1. the information must be specifically identified
2. the information must have the necessary quality of confidentiality
3. the information must have been communicated and received on the basis of a mutual understanding of confidence
4. the information must have been disclosed or threatened to be disclosed, without authority, and
5. unauthorised disclosure of the information has or will cause detriment.

In this decision, Commissioner Pirani works through the above five factors whilst considering the parties submissions and evidence, ultimately satisfying herself that section 45 does apply to the audit report in question.

Practical takeaways

This decision presents an ideal opportunity for FOI Teams to engage with their internal business areas on s 45; highlighting the importance of having proper documentation and evidence of confidentiality at the time of document creation.

We encourage you to talk to your business areas about their processes and expectations in relation to confidentiality and make sure they line up with the FOI Act’s requirements. Your Agency will then be in the best possible place to maintain this claim, should an FOI request be received.

Some points for discussion are:

1. Is the information you intend to claim confidentiality over specially identified? Blanket claims over any communications or documents involving an external provider are unlikely to be successful. We recommend that agency’s focus on which specific information or documents are intended to be confidential (i.e. in this case it was an audit report).
2. Do contracts and communications with external services providers clearly outline an expectation of confidentiality over specifically identified documents (i.e. final examination reports or advice)?
3. Are those documents clearly marked as confidential?
4. Is the importance of maintaining confidentiality a clearly communicated expectation for all agency staff and external providers involved?

5. Do you already have, or can the FOI team obtain, evidence from the relevant business area or external provider about expectations of detriment or harm upon disclosure?