Case Note - 'AZV' and Commonwealth Ombudsman (Freedom of information)

This Information Commissioner (IC) review decision concerns a decision of the Commonwealth Ombudsman (the Ombudsman) and discussed the application of ss 24A and 47E(d) of the Freedom of Information Act 1982 (Cth) (FOI Act).

Background

On 13 December 2021, the Applicant applied to the Ombudsman for access to a broad range of documents in relation to an investigation by the Ombudsman into the handing of a Public Interest Disclosure (PID) by the Department of Home Affairs (the Department).

On 31 January 2022, the Applicant revised the scope of their request to exclude certain information, including the names and contact details of staff of the Ombudsman and the Department. The Applicant also revised their request to specifically include a request for 11 witness statements that they claim had been provided to the Ombudsman.

On 4 February 2022, the Ombudsman refused the request under s 24(1)(b) of the FOI Act, on the basis that processing the request would substantially and unreasonably divert the resources of the Ombudsman from its other operations (s 24AA(1)(a)(i)).

On 17 February 2022, the Applicant applied for internal review. In its internal review decision, the Ombudsman identified 12 documents in response to the request and decided to release each document in part with information redacted under ss 47E(c), 47E(d) and 47F of the FOI Act.

The Applicant did not contest the Ombudsman’s redactions under ss 47E(c) and 47F of the FOI Act, or the Ombudsman’s redactions of the direct telephone numbers of Ombudsman staff under s 47E(d) of the FOI Act.

Reasonable Searches – s 24A of the FOI Act

The Ombudsman submitted that it did not hold copies of the 11 witness statements. In support of this contention, the Ombudsman provided evidence of the searches undertaken by the PID team, being the relevant subject matter experts.

Ultimately, the IC was satisfied that the Ombudsman had taken all reasonable steps to locate the 11 witness statements and that the witness statements cannot be found or do not exist.

Certain Operations of Agencies – s 47E(d) of the FOI Act

In the internal review decision, the Ombudsman redacted Documents 8 to 15 in full, and each of the attachments to these documents, under s 47E(d) of the FOI Act, on the basis they comprise PID investigation material.

The IC noted that the operations of the Ombudsman have been considered previously in IC reviews, such as Paul Hayes and Commonwealth Ombudsman (Freedom of information) [2025] AICmr 80 (2 May 2025) and Australian Skeptics Inc and Commonwealth Ombudsman (Freedom of information) [2021] AICmr 61.

In finding that the disclosure of the material at issue would impact on the willingness of agencies and individuals to cooperate with Ombudsman investigations, the IC referred to the combined effect of ss 8(2) and 35 of the Ombudsman Act 1976 (Cth). The IC also acknowledged the Ombudsman’s unique role in receiving and investigating complaints about the handling of PIDs and accepted that disclosure of the documents would impact the operations of the Ombudsman.

Regarding the public interest, the IC gave significant weight to the following factors against disclosure of the material at issue:

• disclosure could reasonably be expected to prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General
• disclosure could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
• disclosure could reasonably be expected to prejudice an agency’s ability to obtain confidential information
• disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future, and
• could reasonably be expected to prejudice the protection of the right to privacy of those individuals who provided witness accounts.

Ultimately, the IC was satisfied that the material at issue was conditionally exempt under s 47E(d) of the FOI Act.

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.
• When relying on s 47E(d) of the FOI Act, decision-makers should ensure that they turn their mind to their agency’s relevantly statutory functions, as this will likely be relevant in the application of the conditional exemption, as well as to the public interest test.

If your agency requires advice or assistance with the processing of FOI requests, please reach out to Chantal Tipene and our team of FOI specialists would be happy to assist.