Case note: AYQ and the Attorney-General (Freedom of information)

'AYQ' and the Attorney-General (Freedom of information) [2025] AICmr 172 (25 September 2025)

This recent decision by Freedom of Information (FOI) Commissioner Toni Pirani (Commissioner) provides useful guidance for:

• considering whether all reasonable steps have been taken to find documents within the scope of a request under s 24A of the FOI Act, and
• clarifying when the cabinet exemption in s 34(3) of the FOI Act will be held to apply.

Background

The decision under review concerned a request that the applicant made to the Attorney-General (the respondent) for access to documents relating to or which reference the applicant, including information concerning their suitability to be appointed as a Member of the Administrative Review Tribunal (ART).

An authorised officer of the respondent identified documents within the scope of the access request, being one email and one attachment, dated 25 April 2024, and two emails dated 8 September 2024 (the documents at issue).

On 12 December 2024, the respondent decided to:

• refuse access in full to all of the documents at issue after
  • deleting irrelevant material under s 22(1)(a)(ii), and
  • claiming exemptions to the balance of the material under ss 34(2), 34(3) and 47E(d) (the decision).

On 2 January 2025, the applicant applied for an Information Commissioner (IC) review of the decision, contending that:

• relevant material may be missing from the material located by the respondent, and
• the claimed exemptions were not correctly applied.

Whether reasonable steps taken to find documents (s 24A)

In considering whether all reasonable steps had been taken to locate documents within scope of the applicant’s request, the Commissioner noted that, as per the FOI Guidelines, whether ‘all reasonable steps’ have been taken is a question of fact to be decided having regard to matters such as the terms of an applicant’s request, the document creation and retention practices in an agency, and the steps taken by the agency to identify and locate documents requested by the applicant.

The Commissioner noted the applicant’s submission of 1 May 2025, that read as follows:

’I find it unusual that if the Attorney General chose not to accept the recommendation of the Department regarding my appointment to ART that there is no file note or memoranda of the deliberative process engaged in to reach this conclusion or any recording of this decision, save presumably for an email communication of the decision to the Department on 8 September 2025.’

In response to this, the respondent’s further submissions set out in greater detail the searches that had been undertaken, including the locations that had specifically been searched. The respondent further provided by way of explanation that the Attorney General’s office was not involved with the day-to-day affairs in relation to the recruitment of ART members. The respondent further clarified that documents relating to ART appointments were typically prepared and managed by the Attorney General’s Department, with such documents returned to the department for further action and storage.

Having considered the above outlined material, the Commissioner was satisfied that all reasonable steps had been undertaken for the purposes of s 24A of the FOI Act.

Cabinet documents (s 34)

The applicant submitted that the exemption in s 34(3) of the FOI Act had not been appropriately applied by the respondent.

The applicant submitted that the respondent should not have redacted the names of the authors and intended recipients of the emails that were released to him. The applicant contended that this information was not covered by the exemptions in ss 34(2) and 34(3) of the FOI Act because the disclosure of the names and roles of these persons would not itself disclose Cabinet material or otherwise reveal a Cabinet deliberation or decision.

In considering these submissions, the Commissioner noted that in her view, the exemption under s 34(3) does not require that the documents at issue contain a copy, part or extract of a Cabinet submission or decision. This is because s 34(3) only requires that the relevant document contains information the disclosure of which would reveal a Cabinet deliberation or decision. The Commissioner noted that, as per Deputy President Forgie in Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301 (Toomer) at [88], a broad meaning must be given to the term ‘deliberation’ in s 34(3) of the FOI Act.

Taking into account these matters and following her review of the unredacted documents at issue, the Commissioner was satisfied that disclosure of the documents at issue would reveal a Cabinet decision or deliberation such that s 34(3) of the FOI Act applied.

The Commissioner then considered whether the documents at issue had been officially disclosed in the context of the publication of the names of the appointees to ART. While the Commissioner considered the matter of Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73 (Warren), which held that s 34(3) of the FOI Act cannot apply in circumstances where the existence of the deliberation or decision has already been officially disclosed, the Commissioner ultimately found that Warren did not apply in these circumstances.

The Commissioner was satisfied that the official disclosure of appointees to the ART did not itself disclose the existence of any deliberation or decision of the Cabinet.

The Commissioner was therefore satisfied that the relevant material at issue was exempt under s 34(3) of the FOI Act.

Due to finding that the relevant material was exempt under 34(3) of the FOI Act, the Commissioner did not make a decision as to whether the documents were also exempt ss 34(2), 47C and/or 47E(d).

Key takeaways

• When seeking to establish that all reasonable steps have been undertaken to locate documents within the scope of a request, as per s 24A of the FOI Act, agencies should ensure that detailed (contemporaneous whenever possible) evidence of searches is provided to the IC. This evidence should cover all aspects of the search and retrieval process, and wherever possible respond to any specific contentions made by the applicant in the course of the IC review.
• If after reviewing the search minute and/or evidence of searches undertaken during the original or internal review decision making period, it may become apparent to the respondent agency that a further consultation on searches is required. Any additional search evidence can be annexed as an attachment to the agency’s IC submissions.    
• If an FOI decision maker is considering the application of both ss 34(2) and 34(3) of the FOI Act, the decision should carefully distinguish the difference between the relevant tests. Section 34(2) will apply if the document at issue contains a copy or part of, or extract from, a Cabinet submission or decision. Whereas s 34(3) requires the decision maker to be satisfied that the disclosure of the document (or information within the document) would reveal a Cabinet deliberation or decision, which has not been officially disclosed. Whilst both provisions may apply to a particular document, they are not reliant on one another.