Case note: 'AXE' and Australian Federal Police (Freedom of information)

‘AXE’ and Australian Federal Police (Freedom of information) [2025] AICmr 120 (25 June 2025)

This recent decision of Freedom Information (FOI) Commissioner, Tori Pirani (Commissioner), provides practical guidance on applying s 47E(c) in relation to recruitment related documents.

The decision under review was a decision by the Australian Federal Police (AFP) to refuse access to certain document’s relating to the Applicant’s personnel security vetting, following an AFP recruitment process. The AFP issued a late (and therefore deemed refusal) decision, claiming that the documents were exempt under various provisions, including s 47E(c), which protects documents the disclosure of which would have a substantial adverse effect on the management or assessment of personnel. Due to the AFP’s decision being a deemed refusal, for the purposes of the review the Commissioner considered the decision as part of the AFP’s submissions.

The Applicant only sought review of the use of s 47E(c) over seven documents, which the AFP had refused in full, arguing the exemption was misapplied, particularly as some content included their own personal information, and the recruitment process to which the documents related was already partially public.

Section 47E(c) - elements required to establish the conditional exemption

Section 47E(c) of the FOI Act provides that a document is conditionally exempt if its disclosure under the FOI Act would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.

The FOI Guidelines provide at paragraph [6.103] that, for material to be conditionally exempt under s 47E(c) of the FOI Act, it must relate to either the management of personnel, including material regarding human resources policies and activities, recruitment, and work health and safety, or the assessment of personnel, relating to performance management, in-house training and feedback

In addition, paragraphs [6.13] – [6.16] of the FOI Guidelines clarify that, to establish a reasonably expected adverse effect, there must be, based on reasonable grounds, at least a real, significant or material possibility of substantial prejudice. As per [6.19] of the FOI Guidelines, the decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons.

Considering the documents at issue

In her decision, the Commissioner assessed the AFP’s claim that disclosure of the material at issue could compromise the integrity of its vetting processes. However, the Commissioner was not satisfied that the AFP had discharged its onus under s 55D(1) of the FOI Act. The Commissioner empathised that agencies must provide particularised evidence of the harm said to flow from disclosure, rather than relying on broad or unsubstantiated assertions.

While accepting that some of the material revealed sensitive recruitment methodologies and could reasonably be expected to prejudice future personnel assessments if disclosed, the Commissioner found that other material, particularly content consisting of the Applicant’s own personal information or routine correspondence, did not meet the threshold for exemption under s 47E(c) of the FOI Act.  In line with the Guidelines, the Commissioner found that the AFP had not demonstrated a real, significant risk of harm from releasing certain material, particularly where no confidential methodology was disclosed.

The Commissioner concluded that only those portions of the documents that revealed non-public recruitment techniques were conditionally exempt under s 47E(c), and that the balance of the material could be disclosed. Regarding the material that was held to be conditionally exempt, the Commissioner was satisfied that disclosure of this material could have an adverse effect on the AFP’s management of personnel (its recruitment process) by revealing the methods employed by the AFP to vet candidates. The Commissioner accepted that the impact would be substantial, given that these precise methods were not publicly available. The Commissioner was satisfied that disclosure may enable the evasion of the AFP’s vetting processes, noting that the FOI Act does not restrict the dissemination of material released under it.

The public interest test

The Commissioner then considered the public interest test in relation to the material subject to s 47E(c). The Commissioner, after weighing up the submissions from both parties, decided that disclosure of the material found to be conditionally exempt under s 47E(c) would be contrary to the public interest at this time. This is because the material the Commissioner found to be conditionally exempt was of a procedural nature that revealed the AFP’s vetting processes.

The Commissioner accepted that disclosure of this material could reasonably be expected to prejudice the AFP’s ability to conduct its recruitment processes by revealing the particular methods by which the AFP obtains relevant information while vetting candidates.

Key takeaways

This case is a reminder to agencies of the threshold that must be met when seeking to rely on s 47E(c) of the FOI Act. The Commissioner has emphasised in this decision, that wherever possible, agencies should seek to provide particularised and substantiated evidence when seeking to rely on a conditional exemption of the FOI Act.

During an IC review, agencies may wish to consider annexing a statement or further response from the relevant business area which articulates the alleged harm that may occur if material were disclosed.