Case note: 'BAP' and Department of Veterans' Affairs (Freedom of information)

'BAP' and Department of Veterans' Affairs (Freedom of information) [2026] AICmr 39 (4 June 2026)

In this recent decision of the Freedom of Information Commissioner, Alice Linacre (Commissioner), examines the commercially valuable information exemption (s 47(1)(b)) and the personal privacy exemption (s 47F) of the Freedom of Information Act 1982 (Cth) (the Act) .

Background

The applicant in this matter sought access under the Act to documents held by the Department of Veterans’ Affairs (DVA), relating to an earlier FOI request made by the applicant and about measures the DVA would take to ensure timely decision-making on the FOI request.

The original decision made by the DVA granted access to documents in part with exemptions under:

1. Irrelevant material – s 22
2. Management and assessment of personnel – s 47E(c)
3. Proper and efficient conduct of operations – s 47E(d)
4. Personal information – s 47F
5. Information having a commercial value – s 47(1)(b)
6. Asserted that no further documents existed – s 24A.

The Applicant sought review by the Information Commissioner of all exemption grounds claimed and contended that the DVA had not undertaken adequate searches. The Commissioner conducted the review of the DVA’s decision.

Decision

The Commissioner set aside the decision made by the DVA and substituted a new decision where it was determined:

1. the DVA’s searches were reasonable and met the requirements under s 24A of the FOI Act
2. the DVA’s application of s 22 to irrelevant materials was valid
3. the application of s 47(1)(b) should be varied, with further material to be released
4. the application of s 47F to employee information was valid, but the application of s 47F and s 47E(d) to individual contractor information should be varied, with further material to be released, and
5. the application of s 47E(c) and s 47E(d) to employee information was not considered as the material was found to be conditionally exempt under s 47F.

Key reasoning

Commercially valuable information exemption (s 47(1)(b))

The DVA submitted that information in the documents, including amounts paid to legal service providers, high level, generalised descriptions of particular services, and the identities of legal services providers is exempt under s 47(1)(b).

Documents may be exempt under s 47(1) where they contain ‘information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed’.

The Commissioner drew upon the OAIC FOI Guidelines to outline that the second requirement of s 47(1)(b) — that it could reasonably be expected that disclosure of the information would destroy or diminish its value — must be established separately by satisfactory evidence that particular information has commercial value. The Commissioner also noted that it should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known.

The DVA submitted that the information consisted of a detailed breakdown of all payments made by the DVA to more than 20 external legal services over a four-year period, the release of which would destroy or diminish its commercial value. Specifically, that disclosure of costing information for specific items of work, secondee or employee contributions, could be used by competitors to obtain a commercial advantage over the third-party provider, prejudice the DVA’s ability to negotiate better rates in future for similar services, and make it less likely that would offer the DVA competitive rates in future.

The Commissioner drew upon FOI case law regarding the disclosure of information relating to external legal service providers, establishing that while legal service provider’s hourly or daily rates may be information having a commercial value, materials that would not justify exemption included:

• Under s 47(1)(b), material which only documented the total amounts paid, and when counsel appeared in court, which would not allow the calculation of counsel’s hourly or daily rates (Sweeney and Australian Securities and Investments Commission [2013] AICmr 68).
• Under s 47(1)(b), information in the agency’s Legal Services Expenditure Reports concerning amounts paid to legal services providers (AHX and Department of Employment and Workplace Relations (Freedom of Information) [2024] AICmr 39).
• Under s 47G, documents which did not detail how the total cost was derived, such as the specifics of the work performed, the rates charged or the period of engagement by the Department (ADT’ and Department of Veterans’ Affairs (Freedom of information) [2023] AICmr 53).

Consequently, and taking into consideration the age of the information (dated 2017-2021), the Commissioner found that neither the information about annual amounts paid to legal services providers, nor information about individual amounts paid in response to invoices, had commercial value that would be destroyed or diminished if the information were disclosed.

Personal privacy exemption (s 47F)

The DVA deleted the names of its staff, staff of the OAIC, and the surnames of contracted service providers, under s 47F. The Commissioner found that this information did constitute personal information in line with Bachelard and Australian Federal Police (Freedom of information) [2025] ARTA 2416 and Madden; Secretary, Services Australia (Freedom of Information) [2026] ARTA 423.

Employee information

The Department submitted that disclosure of employee information would be unreasonable as it would be inconsistent with department policies, contrary to the expectations of the staff members who are not publicly connected with the DVA’s work and pose a risk of harassment to staff members by the public.

The Commissioner accepted that the employee information was conditionally exempt under s 47F given:

• Disclosure of the employee information would do little to meaningfully increase the transparency of government decisions and actions.
• The employee information is not well known and is not available publicly.
• Disclosure could reasonably be expected to cause detriment and stress to the individuals through unwanted contact should their full names be released.

Individual Contractors

Regarding individual legal service providers on secondment to the DVA, the Commissioner applied the same reasoning as for employees. Conversely, the Commissioner found that the personal information of external individual contractors (including the names of barristers briefed by or for the DVA) was not conditionally exempt under s 47F.

The Commissioner also considered the DVA’s contention, in the alternative, that information regarding individual contractors was conditionally exempt under s 47E(d), on the basis that disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the DVA’s operations. However, the Commissioner found that the DVA did not provide sufficient submissions or reasons to support this contention and therefore failed to discharge its onus in relation to the s 47E(d) material.

Key takeaways

• The hourly or daily rates of a legal service provider may be information having a commercial value; however, material documenting only yearly amounts paid, or individual amounts paid against invoices, which does not reveal rates, periods of engagement or a cost breakdown, generally will not.
• The surnames and contact information of DVA staff, including secondees, is exempt under s 47F, where disclosure does not meaningfully increase the transparency of government decision-making, and could reasonably be expected to cause detriment and stress to the individuals through unwanted contact, and therefore would be unreasonable.
• The Commissioner gave additional weight to the danger of staff harassment given the DVA’s resolution of contentious issues with members of the public.
• The names and contact details of external individual contractors, such as barristers briefed, were not exempt under s 47F, nor under s 47E(d) – though this largely reflected the DVA’s failure to discharge its onus to provide submissions and evidence establishing that disclosure would be unreasonable.
• When asserting that a specific exemption or conditional exemption will apply to material, it is of the utmost importance that these assertions are substantiated with evidence and submissions whenever possible. As this case illustrates, mere assertions without supporting evidence or submissions are unlikely to be given much weight by the Commissioner.

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