Case note: Aveo Group Limited and Australian Competition and Consumer Commission (Freedom of information)

Aveo Group Limited and Australian Competition and Consumer Commission (Freedom of information) [2025] AICmr 191 (28 November 2025)

This recent decision of FOI Commissioner Alice Linacre (Commissioner) finds against a third-party’s contentions that certain business information subject to an FOI request addressed to the Australian Competition and Consumer Commission (ACCC) should be conditionally-exempt under s 47G(1)(a) of the Freedom of Information Act 1982 (Cth) (FOI Act).

Under s 55K of the FOI Act, the FOI Commissioner affirmed the internal review decision of the ACCC dated 11 February 2025, on the basis that the Commissioner was not satisfied that the material at issue within Documents 1, 2 and 3 was conditionally exempt under 47G(1)(a) of the FOI Act.

The facts of this matter are summarised in the decision as follows:

The matter relates to an access request made to the ACCC on 23 September 2024, which resulted in a revision of scope on 16 October 2024. The revised scope sought access to:

• the final Enforcement Committee paper related to the investigation of retirement village operator Aveo and records of the decision of the outcome of the investigation, and
• the final correspondence to Aveo advising of the outcome of the investigation.

During the course of the FOI processing period, the third-party business Aveo was consulted under s 27 of the FOI Act, on the basis that certain requested documents contained Aveo’s business information.  

From paragraphs [28]-[29] of the Commissioner’s decision, it is understood that the relevant investigation concerning Aveo commenced in 2017 and concerned the proposed redevelopment of a retirement village located in Newmarket, Queensland. The ACCC investigation and its discontinuance was the subject of significant and ongoing media attention towards both Aveo and the sector more generally.

On 4 December 2024, a decision maker at the ACCC granted part access to three (3) documents, subject to conditional exemption under s 47G of the FOI Act (business information).  

On 17 January 2025, as an affected third party Aveo sought internal review of the ACCC’s decision to grant part access to the requested materials. Aveo sought more extensive redactions over the documents. An internal review decision affirming the original decision was issued on 11 February 2025. On Aveo’s application, the matter then proceeded to Information Commissioner (IC) review.  

During the IC review, the FOI Applicant also joined the proceedings in accordance with s 55A of the FOI Act.

Issues in dispute

The scope of the IC review application was limited to whether certain material in Documents 1, 2 and 3 was conditionally exempt under s 47G(1)(a) of the FOI Act, and if so, whether disclosure of that material would be contrary to the public interest in accordance with s 11A(5).

In accordance with s 55D(2), it was Aveo’s onus (as the IC review applicant) to establish whether a refusal decision was justified, or that the Commissioner should make a decision adverse to the FOI applicant.  

The Test

Section 47G(1)(a) provides that:

(1)  A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:

 (a)  would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs(…)

As s 47G is a conditional exemption provision, a decision maker must also have regard to the public interest test in accordance with ss 11A and 11B of the FOI Act.

Referring to 6.181 of the FOI Guidelines the Commissioner confirmed at paragraph [16] of her Decision that:

’The operation of s 47G depends on the effect of disclosure rather than the precise nature of the information itself. Notwithstanding this, the information must have some relevance to a person in respect of their business or professional affairs or the business, commercial and financial affairs of the organisation.’

Paragraphs [21] – [27] summarise the parties’ submissions. At [21] the Commissioner summarises Aveo’s contention that that material within the documents contained ‘unsubstantiated allegations’ relating to a 2019 discontinued investigation, and that:

• The allegations are serious in nature and not supported by evidence, resulting in the ACCC’s decision to discontinue the investigation.
• The allegations are untested, in that the IC review applicant was not afforded an opportunity to fully respond to the allegations prior to the ACCC’s discontinuance of the investigation.
• The material reveals information that was provided to the ACCC in confidence, which the IC review applicant expected would not be widely disseminated.
• While the ACCC’s investigation stemmed from a joint media investigation, the material at issue contains the ACCC’s findings and views which is not publicly available or generally known and only subject to public speculation.

In respect of the Public Interest Test, the Commissioner summarised Aveo’s submission as follows:

• Disclosure would release material that gives a negative impression of the applicant’s business practices and without the full context, this could allow speculation and adverse inferences to be drawn which would result in reputational damage.
• Disclosure would adversely impact the IC review applicant’s commercial interests, by impacting its ability to attract and retain residents, and consequently drive down its property prices. This would have a flow on effect to residents, decreasing the value of their residences and their ability to secure a sale.
• Disclosure would impact on the IC review applicant’s ability to maintain positive relationships with residents, which would likely have an adverse emotional impact (distress) on residents.

The FOI Applicant disagreed with these contentions.

Whilst the ACCC accepted that the information is ‘business information’ and that some limited adverse effects would likely flow from disclosure, the ACCC was not of the view that the ‘unreasonable’ threshold was met.

At paragraph [26] the Commissioner summarised the following submissions of the ACCC:

• There has been discussion in the public domain by both the media and the public regarding the nature and outcome of the ACCC’s investigation into the IC review applicant, and speculation as to the ACCC’s views about its conduct.
• While the material at issue would disclose the precise nature of the ACCC’s views and regulatory concerns, the public interest in disclosure of its views as the regulator, including its reasons for taking no further action in relation to the allegations, outweighs the private reputational and commercial interests of the IC review applicant.
• The material at issue would also reveal the reasons why the investigation was discontinued and the background and contextual information that informed that decision, which would enhance scrutiny of government decision making in circumstances where the existence of the investigation and its areas of focus are already in the public domain.
• It would be open to the IC review applicant to provide additional context and make a public statement responding to the concerns or allegations contained in the material at issue.

Paragraph [27] of the decision provided that Aveo disagreed with the ACCC’s submissions and submitted that the making of a public statement would not alleviate or detract from the unreasonableness and expected damage of the proposed. Further Aveo, was not of the view that the passage of time had mollified the disclosure concerns to any great degree, noting the ‘current setting of intense media scrutiny of the sector’.  

Consideration

In considering the relevant statutory tests, the FOI Guidelines and case law (including the AAT decision of Bell and Secretary, Department of Health (Bell) and Gadens Lawyers Brisbane and Australian Securities and Investments Commission (Freedom of information) [2021] AATA 1634 (9 June 2021) (Gadens)), the  Commissioner was ultimately not persuaded by Aveo’s submissions that the relevant hard threshold was met, such that the material was conditionally exempt under ss 47G(1)(a) of the FOI Act.  

However, in her reasoning, the Commissioner does acknowledge that upon her examination of the un-edited documents, the documents in issue ’primarily concern allegations in respect of the IC review applicant’s retirement village in Newmarket, Queensland’ and that ’These allegations appear to be unsubstantiated, to the extent that the ACCC discontinued its investigation into them.’

In her decision, the Commissioner assessed the Aveo submissions against her own consideration of the documents as follows (our emphasis added):

[37]      Here, the IC review applicant has been widely linked to the majority of the allegations in the documents (see media and journal articles referred to above at [29]) and I am of the view that the release of the material at issue would not cause the IC review applicant any significant harm. I do not accept the IC review applicant’s submission that the specificity of the material at issue would unreasonably elevate the IC review applicant’s exposure to reputational damage, in the context of the volume of material that currently exists in the public domain. I also note that the IC review applicant has previously provided public responses to these allegations.[40]

[38]     The matter before me can be distinguished from those relied on by the IC review applicant. Those matters involve the business information of multiple third party organisations in circumstances where the unsubstantiated allegations/complaints had not been previously released and the combined private interests of those businesses outweighed any public interests identified in disclosure. In this matter, the allegations against the IC review applicant are clearly central (not peripheral[41]) to the ACCC’s investigation into the conduct of the IC review applicant. Further, I agree with the ACCC, that the material would disclose the ACCC’s views about the IC review applicant including the ACCC’s reasons for taking no further action in relation to the allegations.[42] In this way, disclosure would reveal the ACCC’s reasons for discontinuing the investigation into the IC review applicant and the background or contextual information that informed that decision.

[39]      I am also of the view there is a clear public interest in protecting consumers of goods and services and ensuring consumers are treated fairly. The ACL, which is written into Schedule 2 of the Competition and Consumer Act 2010 (Cth), is the legislative interpretation of that public interest.[43] In this regard, I note the IC review applicant, from information on its website, operates some 67 retirement villages across the eastern states of Australia and asserts it is home to more than 10,000 residents nationwide.[44] Disclosure of the material at issue would therefore enhance the scrutiny of the ACCC’s decision making into concerns regarding the IC review applicant’s compliance with the ACL, in circumstances where that decision has the potential to affect a large number of residents.

At paragraph [42] the Commissioner confirmed that she was not satisfied that the material at issue within Documents 1, 2 and 3 was conditionally exempt under 47G(1)(a) of the FOI Act and has therefore not made a finding in relation to the public interest test.

Aveo have until 26 December 2025 to appeal the FOI Commissioner’s Decision to the ART. Once those review rights are exhausted the ACCC will be able to release to the requested documents to the FOI Applicant.

Key takeaways

• This decision proceeded through the IC review process within less than 12 months, indicating that the Commissioner’s previous backlog of decisions does appear to be clearing.
• In a third-party review matter, remember that the IC Review applicant will bear the onus of establishing that access should be refused. In these cases, the FOI Agency will often be able to take a more neutral position in their submissions and evidence.
• The FOI Applicant (and potentially any other interested parties) can join IC review proceedings brought by a third-party applicant. Don’t forgot to ensure that the appropriate notifications go out at the start of the IC Review matter.
• Consideration of relevant material already in the public domain, will often be central to harm test of 47G. If an Agency does not agree with the contentions of a consulted third-party, Agency’s should consider annexing evidence of any relevant publicly available material to their IC submissions (or if the matter progresses to the ART, this can be done by annexing relevant materials to an affidavit).