Case note: 'ATY' and Department of Home Affairs (Freedom of Information)

‘ATY’ and Department of Home Affairs (Freedom of Information) [2025] AICmr 25 (6 February 2025)

Focus exemption: Section 37(2)(b)

Section 37(2)(b) applies to material that if disclosed, would, or could, reasonably be expected to prejudice law enforcement methods and procedures.

To be satisfied that this exemption applies apply this exemption, a decision maker must be satisfied of two (2) factors:

• Is there a reasonable expectation that the document (or information) will disclose a method or procedure, and
• Is there a reasonable expectation, or real risk, that the effectiveness of those investigative methods or procedures will be prejudiced.

Practical takeaway

In this matter, the Department provided both open and closed submissions on the application of s 37(2)(b). If your Agency intends on filing confidential submissions in a review mater, don’t forget that a request will need to be made to the OAIC as soon as possible following notification of a review matter. See [3.26]-[3.27] of the OAIC’s Practice Direction dated 1 July 2024.

At [18], Commissioner Pirani notes that “the deletions are confined and specific”. We understand this to mean that the Department has taken a line-by-line approach to redactions. This ensures that the exemption decision also meets the requirements of s 22, being that a decision maker is required to provide an edited copy of the requested document if it is possible to do without revealing exempt material.

Whilst the FOI Guidelines confirm that Agency’s do not need to provide documents that are so heavily redacted that they only reveal a skeleton of themselves, we do recommend that Agency’s ensure that they closely consider the requirements of s 22 prior to proceeding a full refusal or exemption decision.