Case Note: 'AUM' and Department of Education (Freedom of information)

'AUM' and Department of Education (Freedom of information) [2025] AICmr 50 (19 March 2025).

This recent decision of Freedom of Information (FOI) Commissioner, Toni Pirani provides useful guidance on the application of s 45 of the FOI Act – Documents containing material obtained in confidence.

The decision under review was a decision by the Department of Education (the Department) to refuse access to certain documents relating to the Literacy and Numeracy Test for Initial Teacher Education (LANTITE), which is a test that must be sat by all students enrolled in an Australian accredited initial teacher education course.

The scope of the request sought access to:

Data on LANTITE test participation and performance sent to dandolopartners in April 2019 (referred to in the implementation review final report, p.36) excluding: • draft and internal working documents • email correspondence.

In the Department’s decision, it identified three documents, comprising 177 pages. The Department decided that the material in the documents at issue was exempt under s 45, 47(1)(b) and 47F of the Freedom of Information Act 1982 (FOI Act).

Material obtained in confidence – As per paragraph 5.189 of the FOI Guidelines, in order to establish the exemption in s 45 of the FOI Act, the following must be established:

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

In this Decision, Commissioner Pirani noted the following:

• The relevant contract notices on Austender did not specify that the contract or outputs of the contract were confidential.
• In support of their argument, the Department pointed to the fact that the LANTITE data protocols (protocols) and deeds between the Department and relevant stakeholders provided limitations on how stakeholders could use and disclose the relevant material.
• However, while the data protocols precluded the publication of the data that could identify individual test takers or higher education providers, the protocols were in fact otherwise intended to facilitate access to test data.
• Further, the protocols provided that the Commonwealth retained the right to publish test data.

Commissioner Pirani therefore concluded that, while the protocols limited how other stakeholders may use and disclose the material at issue, no such obligations were placed upon the Department.

The Commissioner found that there was no mutual understanding of confidence regarding the material, and the Department had not met its onus in establishing that the criteria under section 45 applied and the exemption did not apply.

Practical tips regarding s 45:

• For the purposes of s 45, it is not sufficient for there to be a one-sided obligation of confidence. Instead, the obligation of confidence must be mutual.
• In looking to apply s 45, FOI decision makers should ensure that all criteria outlined in the FOI Guidelines are satisfied in respect of the particular document/s subject to the FOI request.
• Whilst a document classification marking may provide supporting evidence that a document was intended to be communicated in confidence, this alone will not satisfy the exemption criteria.
• Consultations with internal stakeholders, courtesy consultations and/or third-party consultations may be required to obtain supporting evidence to substantiate a claim under s 45.
• Finally, it is important to look at the status of the document at the time that it was created or provided to the Department, as well as the status of the same document at the time of the FOI request being received. The passing of time, and any subsequent use or dissemination of material can impact the application of s 45.

Note: This case note only discusses the Commissioner’s findings that relate to s 45 of the FOI Act. We do not discuss the Commissioner’s consideration of sections 47(1)(b) or 47F of the FOI Act, although you can read the full decision here.