Case note: 'AVH' and Prime Minister of Australia (Freedom of Information)
22 January 2026
'AVH' and Prime Minister of Australia (Freedom of information) [2025] AICmr 72 (16 April 2025[LH1] )
This interesting Information Commissioner (IC) review matter from last year explored what constitutes ‘an official document of a Minister’ under the Freedom of Information Act 1982 (Cth) (the FOI Act). Excitingly, this IC review matter involved the world’s favourite pop sensation – Taylor Swift!
Background
On 25 March 2025, the Applicant applied to the Prime Minister’s office for access under the FOI Act to all documents related to the Prime Minister’s attendance at a Taylor Swift concert in Sydney on 23 February 2024.
The application was initially refused on the basis that the documents being sought were not considered ‘an official document of a Minister under s 4 of the FOI act and as such the request was not within scope of the FOI Act. The Applicant subsequently sought IC review.
The Prime Minister’s submissions
Due to being an IC review, the Prime Minister bore the onus of establishing that the decision was justified. The Prime Minister submitted that the documents sought were not ‘official documents of a Minister’ principally due to the fact that they did not relate to the affairs of a Commonwealth Government agency. The Prime Minster submitted that attending the concert had no connection with the responsibilities of his office or the activities of any government entity, nor were any such entities involved in facilitating the Prime Minister’s attendance.
The Prime Minister’s contentions were supported by the decision in Joel Fitzgibbon and Prime Minister of Australia [2016] AICmr 85 in which it was held that ‘not all documents held in the Prime Minister’s office will be considered as “official documents of a Minister”, and therefore subject to the FOI Act’.
The Applicant’s submissions
The Applicant submitted that the documents had been elevated to constitute ‘official documents of a Minister’ due to the fact that the tickets to the concert were received as a gift to the Prime Minster of Australia, which was disclosed on the Prime Minister’s parliamentary register of interests. Further, the Prime Minister referenced his own attendance in several official public appearances both before and after the date of the concert. Lastly, the Applicant submitted if any of the Prime Minister’s staff had assisted in organising attendance or scheduling responsibilities around attendance, this would render any associated documents as an ‘official document of a Minister’.
Consideration
Section 11 of the FOI Act provides a right of access to ‘an official document of a Minister other than an exempt document’. Section 4 of the FOI Act defines an ‘official document of a Minister’ as follows:
...a document that is in the possession of a Minister...in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency.
Relevantly the FOI Guidelines state that the definition of ‘official document of a Minister’ is not restricted only to matters within the minister’s own portfolio responsibility but could relate to an agency within the portfolio responsibility of any minister.
While the Commissioner accepted that the Prime Minister attended the concert in his capacity as Prime Minister, the Commissioner was nonetheless not satisfied that this alone meant that any related documents were ‘official documents of a Minister’.
Further, the Commissioner did not accept that just because staff in the Prime Minister’s may have been tasked to facilitate the Prime Minister’s attendance that this was sufficient to render the matter part of a government entity’s affairs. On this point, the Commissioner noted that a Minister may hold a number of types of documents that do not relate to the affairs of an agency, such as personal documents and party-political documents. The Commissioner noted that staff in ministers’ offices perform many functions some of which are not related to the affairs of agencies, such as party-political functions.
In any case, the Commissioner accepted the Prime Minister’s submission that neither the Department of the Prime Minister and Cabinet, nor any other Department had any involvement in the Prime Minister’s attendance at the concert. It was accepted that there was no department involvement in planning or briefing activities surrounding the Prime Minister’s attendance.
The Information Commissioner concluded that the documents requested were not ‘official documents of a minister’ for the purposes of s 11 of the FOI Act.
Key takeaways
The mere fact that a Minister may be in possession of documents, or that members of their staff dealt with those documents, is not sufficient to render them the ‘official document of a minister’. The key question remains whether the document relates to the official responsibilities, duties or affairs. It is fair to say that, in this instance, despite the ‘reputation’ of the documents at issue, they were not in fact official documents and therefore not subject to the FOI Act – not even in the Applicant’s ‘wildest dreams’!
