Case note: 'AXH' and the Department of Prime Minister and Cabinet (Freedom of information)

‘AXH’ and Department of Prime Minister and Cabinet (Freedom of information) (No 2) [2025] AICmr 123 (27 June 2025)

This recent decision of Freedom of Information (FOI) Commissioner, Toni Pirani (Commissioner), provides useful guidance on several exemption provisions of the FOI Act, including ss 22, 42 47F, 47G, and 47C of the FOI Act.

The decision under review was a decision by the Department of Prime Minister and Cabinet (the Department) to refuse access to certain material relating to a particular email sent to a named staff member, including ‘all correspondence and attached documents’. The email related to a proposed declaration regarding the Humanitarian Overseas Service Medal (HOSM).

In the Department’s decision to provide the Applicant with access to six documents in part, it relied on exemptions under ss 42, 47C and 47G of the FOI Act. The Department also deleted material it claimed to be irrelevant to the terms of the request under s 22(1)(a)(ii), and in the alternative, claimed the material was conditionally exempt under s 47F.

Irrelevant material (s 22)

The Department relied on s 22(1)(a)(ii) to redact names and contact details of non-SES staff. However, the Applicant had not agreed to exclude this material from the scope of the request.

The Commissioner emphasised that agencies cannot unilaterally determine relevance and that such a practice contradicts the FOI Guidelines. The Commissioner found that the Department otherwise failed to demonstrate that the information was irrelevant to the request.

Legal Professional Privilege (LPP) exemption (s 42)

The Department claimed that Documents 2 and 6 were exempt on the grounds of LPP.

While LPP may have initially applied, the Commissioner found it was waived when AusAID (a part of the Department of Foreign Affairs and Trade) disclosed the documents to the Applicant. The Commissioner also noted that the email chains did not contain security classifications and although this is not determinative of whether material is privileged, in the circumstances of this case it was an indication that the author may not have considered the material to be confidential and/or privileged information.

In light of the above factors, the Commissioner found that the s 42 exemption did not apply to the material at issue.

Personal privacy exemption (s 47F)

The Department claimed names and contact details of staff were conditionally exempt under s 47F.

The Commissioner accepted that the material constituted personal information. However, disclosure was not unreasonable in the circumstances, particularly because the Applicant had already received the material from another agency and so the individuals were already known to be associated with the subject matter. Furthermore, no harm or distress from disclosure was substantiated.

Because the Department did not meet its onus to demonstrate the material was exempt under s 47F, the conditional exemption was found not to apply.

Business affairs exemption (s 47G)

The Department relied on s 47G(1)(a) to withhold material said to relate to the business affairs of an organisation.

The Commissioner found that the Department had not identified how disclosure would cause harm or adverse impact to the relevant third party, since the material had already been released to the Applicant through a prior FOI request.

Additionally, given that the subject matter concerned the granting of an honour (HOSM), the Commissioner considered any potential harm from disclosure to be minimal or speculative.

Thus, the material was not found to be exempt under s 47G.

Deliberative matter exemptions (s 47C)

The Commissioner found that certain material was conditionally exempt under s 47C, as it revealed opinions and advice relating to the Department’s deliberative processes on the HOSM. The Commissioner noted that the following factors were relevant in considering that the relevant material was deliberative matter for the purposes of s 47C of the FOI Act:

• The material was clearly marked as draft text for consideration and outlined options regarding the granting of the HOSM.
• The material was not merely descriptive, incidental administrative material, or procedural day-to-day content.

Considering this, the Commissioner found that it was apparent from the content, context and wording that the material at issue contained ‘deliberative matter’ comprised of opinion and advice made in the course of a deliberative process involving the weighing of options regarding the HOSM.

The Commissioner therefore found that the relevant material was conditionally exempt under s 47C of the FOI Act.

The public interest test (s 11A(5))

Since the material was found to be conditionally exempt under s 47C, the Commissioner was then required to consider whether release of the material to the Applicant would be contrary to the public interest, as per s 11A(5).

Relevant to his point, the Commissioner noted the following that much of the deliberative content was already in the Applicant’s possession, reducing the risk of prejudice or harm.

Weighing all relevant factors, the Commissioner found that the public interest in disclosure outweighed the factors against release.

The Commissioner therefore found that although the material was conditionally exempt under s 47C, disclosure would not be contrary to the public interest and therefore access should be granted.

Key takeaways

• Agencies should not rely on s 22 to exclude information without express consent from the Applicant to do so.
• In seeking to claim a document should be exempt from release under s 42, agencies should consider whether LPP has been waived, particularly in circumstances where another government agency may have already disclosed the material.
• Assertions of harm under s 47G must be particularised. General and non-specific concerns about harm are unlikely to be given much weight. Third-party consultations are generally recommended, as responses will guide the decision making process.
• Personal information already in the Applicant’s possession is unlikely to meet the threshold of being unreasonable to release under s 47F.