Case Note: AYG and Department of Home Affairs (Freedom of information)

'AYG' and Department of Home Affairs (Freedom of information) [2025] AICmr 153 (19 August 2025

This recent decision by Freedom of Information (FOI) Commissioner Toni Pirani (Commissioner) examines the application of ss 47C and 47E(d) under the Freedom of Information Act 1982 (Cth) (FOI Act).

Background

The decision under review concerned a request made to the Department of Home Affairs (the Department) for access to all documents related to the Applicant’s removal and re-entry to the United States in 1998 and 2006, as well as all documents referring to the Applicant’s classification and to enforcement action taken by United States authorities.

On 8 October 2021, the Department made a purported decision to refuse access in full to three (3) documents within scope of the Applicant’s request, being departmental files relating to migration, which also contained information provided by the United States Government.

Application of section 47C

During the Information Commissioner (IC) review proceedings, the Department maintained that Document 3 was exempt in full under s 47C of the FOI Act. Document 3 contained internal communications requesting information concerning the Applicant’s citizenship application.

Under s 47C(1) of the FOI Act, a document is conditionally exempt if its disclosure would disclose a matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency. Section 47C(2) of the FOI Act states that deliberative matter does not include operational information or purely factual material.

The Department submitted that Document 3 contained deliberative matter relating to a citizenship investigation, which contained advice and recommendations prepared for the purpose of decision making.

The Commissioner was satisfied that Document 3 contained material gathered for the purposes of assessing a person’s citizenship application so that Departmental staff might form an opinion relevant to the administration of migration laws. While noting that the document contained some non-deliberative material, it was found that all of the material was connected to the deliberative matter such that it ‘related’ to such matter within the terms of s 47C.

The Commissioner was therefore satisfied that Document 3 was conditionally exempt under s 47C of the FOI Act.

Application of section 47E(d)

The Department submitted that Documents 1 and 2 were conditionally exempt under s 47E(d) of the FOI Act. Documents 1 and 2 contained citizenship investigations regarding the Applicant and included information received from the United States Government.

Section 47E(d) of the FOI Act states a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

The Department submitted that Documents 1 and 2 related to citizenship investigations involving the Applicant. On this basis, the documents related to a core function of the Department, being the management of the security and integrity of Australia's borders. The Department submitted that disclosure of the documents could reasonably be expected to prejudice Departmental methods and procedures, including causing the Department to incur costs as a result of process changes necessitated by disclosure.

The Commissioner accepted that the documents disclosed processes by which the Department received and considered covert information relevant to citizenship investigations and accepted this was one of the Department’s operations. In addition, the Commissioner was satisfied that disclosure of the information could undermine the Department’s core security functions such that adverse effects would be serious and significant.

The Commissioner was therefore satisfied that Documents 1 and 2 were conditionally exempt under s 47E(d) of the FOI Act.

Application of the Public Interest Test

When addressing public interest factors in favour of and against disclosure, the Department acknowledged the passage of time since the Applicant’s request but submitted that the passage of time had not diminished the sensitivity of the information such that disclosure would provide an on-going impediment to the Department’s administration of migration laws.

Weighing the harm to the public interest resulting from disclosure against the benefit, the Commissioner was satisfied that disclosure would be contrary to the public interest.

Key takeaways

• When relying on ss 47C or 47E(d) of the Act, FOI officers should turn their minds to the agency’s relevant statutory functions, as well as the processes and procedures that flow from these functions.
• The passage of time is an important element of the public interest test, especially in matters where the original decision was made more than a couple of years ago. In these circumstances, it may be useful for FOI officers to engage with internal business areas so that up-to-date evidence can be relied upon in support of the exemptions claimed.