Case note: 'BAP' and Department of Veterans' Affairs (No. 4) (Freedom of information)
20 October 2026
In this recent decision, the Freedom of Information Commissioner, Alice Linacre (the Commissioner) discusses the application of s 47(1)(b) and s 47F of the FOI Act. This decision provides useful guidance on the application of these provisions.
Background
- On 2 February 2022, the Applicant sought documents relating to a previous FOI
- request which they had made to the Department of Veterans’ Affairs (the Department).
- On 3 March 2022, the Department provided the Applicant with partial access to four documents applying the exemptions in s 47E(c), s 47E(d), s 47F. The Department also found certain material to be irrelevant under s 22(1)(a)(ii).
- On 3 March 2022, the Applicant sought internal review of the Department’s decision.
- On 4 April 2022, the Department affirmed its initial decision and also in addition found material to be conditionally exempt under the commercially valuable information exemption (s 47(1)(b)). The Applicant thereafter sought Information Commissioner (IC) review.
- The Applicant contested the application of ss 47(1)(b), 47E(c), 47E(d) and 47F and also sought review of the information the Department removed from Document 4 under s 22(1)(a)(ii).
Section 47(1)(b) - Commercially valuable information exemption
Section 47(1)(b) of the FOI Act provides that a document is exempt if the disclosure of the document would disclose information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.
In its internal review decision and submissions, the Department described the information found to be exempt under s 47(1)(b) in Document 4 as information about fees paid to a named legal service provider.
The Applicant’s submissions
The Applicant submitted that relevant material should not be exempted under s 47(1)(b) because the rates included in the documents were likely to contain general guidance of ranges of prices and be out of date, therefore only serving as a rough guide.
The Department’s submissions
The Department submitted that the information withheld in the documents had commercial value to both the Department and to external legal service providers.
The Department submitted that:
- disclosure would provide an advantage to other lawyers and law firms that provide services to both the Department and the Commonwealth
- disclosure would therefore disadvantage those still operational lawyers and law firms whose commercial information would be revealed
- the Department may also be unable to gain value for money for its future external legal services if it is revealed what the Department paid lawyers and law firms previously
- the Department notes that this level of detail is not provided in either the Legal Services Expenditure Report prepared by the Attorney-General’s Department, nor in the Department’s Annual Report. and
- it would be advantageous for an external law firm or lawyer to obtain this information because it would give an insight into how much of a certain type of work may be available and allow them to prepare quotes accordingly, based on this information which may not be available to competitors.
Consideration
The Commissioner noted the age of the documents, noting that the material at issue provided ’little current commercial value’. The Commissioner further noted that, while information concerning the hourly or daily rates of legal service providers is information that may have a commercial value, information about the total amounts paid to legal service providers in a year does not have commercial value.
Having considered an unredacted version of the documents at issue, the Commissioner was satisfied that, noting the age of the documents and the kind of high level, generalised information within the documents, that the relevant material did not have a commercial value, and, even if it did have commercial value, that value would not be diminished by disclosure under the FOI Act.
The Commissioner therefore found that the information in the documents that the Department had found to be exempt under s 47(1)(b) was not exempt under s 47(1)(b).
Section 47F - Personal privacy exemption
In its internal review decision, the Department found the surnames and telephone numbers of its employees to be exempt under s 47F of the FOI Act. The Department also found the surnames of other individuals appearing in one of the documents to be exempt under s 47F.
The Commissioner noted that a document will be exempt under this conditional exemption if:
- it contains ‘personal information’
- disclosure in response to the applicant’s FOI request would be ‘unreasonable’ (s 47F(1)), and
- it would be ‘contrary to the public interest’ to release the material at the time of the decision (s 11A(5)).
The meaning of ‘Personal information’ under the FOI Act is the same as in the Privacy Act 1988, being as follows:
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
The Commissioner considered the material at issue and determined that it had the features of personal information required by s 47F of the FOI Act. The Commissioner found that the surnames, signatures and contact information of Department staff was ‘personal information’ for the purposes of s 47F(1) of the FOI Act.
Whether disclosure would involve an unreasonable disclosure of personal information
The Department’s submissions
The Department submitted that disclosure would be unreasonable for the following reasons:
- the information was not generally publicly available
- there is no restriction on what a person may do with information released under the FOI Act which means that such information may be provided to others or made publicly available, and
- the Department’s staff work in a heightened risk environment and Departmental staff have been known to be targeted, insulted and harassed following the disclosure of their full names and contact details, such that the Department is consistently required to manage security issues directed at its staff.
The Applicant’s submissions
The Applicant submitted that the harm described by the Department was not supported and submitted there is a lack of evidence that Department staff have been subjected to the harassment submitted by the Department. The Applicant also pointed out that personal information of public servants is regularly published on various websites, including in the Australian Public Service Gazette (Gazette).
Consideration
In consideration of whether disclosure would be unreasonable, while the Commissioner accepted that disclosure of the surnames of agency staff and other individuals would promote the public interest in transparency and integrity generally, the Commissioner also accepted that the identities of these individuals was not well known or publicly available.
The Commissioner noted that, while APS staff names may be published in some circumstances, such as in the Gazette, that this often occurred as a result of different statutory schemes other than the FOI Act and in different contexts.
The Commissioner noted that, regardless of whether APS staff names may be published in other contexts, the names and contact information included in the documents at issue were not publicly available in connection with the specific subject matter of the documents at issue. The Commissioner further noted that having regard to the nature of the information already disclosed to the applicant (including first names), the Commissioner considered that disclosure of the surnames, signatures and telephone numbers would only promote the public interest in government transparency and integrity to a limited extent.
Weighing the above outlined factors, the Commissioner therefore found that the disclosure of the relevant personal information was conditionally exempt under s 47F of the FOI Act.
Section 11A(5) - Whether access would be contrary to the public interest
Having found the material to be conditionally exempt under s 47F of the FOI Act, the Commissioner was required to consider whether it would be contrary to the public interest to give the applicant access to conditionally exempt material at this time.
The Commissioner noted that the Applicant did not make any specific submissions in relation to the public interest test. In relation to the public interest test, the Department submitted that disclosure would promote the objects of the FOI Act, but that the disclosure could be expected to interfere with the privacy of individuals who are the Department’s staff members and would therefore result in unnecessary stress to the relevant individuals.
On balance, the Commissioner found that the public interest factor against disclosure outweighed the factor favouring disclosure and that disclosure would not be in the public interest.
Having found that the material at issue was conditionally exempt under s 47F, the Commissioner did not need to consider the application of ss 47E(c) and 47E(d) to this material.
Key takeaways
When the commercial information within documents subject to an FOI request is out of date or sufficiently aged, agencies should consider as to whether commercial sensitivities will still apply. As shown in this decision, the Commissioner may find that s 47(1)(b) will not apply to out of date commercial information.
Further, as stated in this decision, the Commissioner is unlikely to find that information regarding the total amounts paid to legal service providers in a year is information that has a commercial value.
Consistent with this and other recent IC Review decisions, the IC is likely to give the privacy of individuals significant weight when weighing up whether disclosure of s 47F material is in the public interest.
If your agency requires advice or assistance with the processing of FOI requests, or managing IC review matters, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.
