Case note: 'BBK' and the Minister for Aged Care and Seniors (Freedom of information)

'BBK' and the Minister for Aged Care and Seniors (Freedom of information) [2026] AICmr 67 (7 August 2026)

In this recent decision, the Freedom of Information Commissioner, Alice Linacre (the Commissioner) discusses the application of irrelevant material under s 22 of the Freedom of Information Act 1982 (Cth) (FOI Act) and the application of ss 47C and 47F of the FOI Act.

Regarding the decision’s discussion of s 47C, this decision demonstrates how, in considering the application of the public interest test in relation to deliberative material, a claim that disclosure may inhibit frankness and candour generally has to demonstrate that the relevant circumstances are special and specific, in order for such a claim to be successful.

Background

On 13 November 2024, the Applicant sought access to the documents relating to the intellectual property assets related to the Future Fit program or Meals on Wheels.

On 7 February 2025, the Minister identified four documents which fell within the scope of the Applicant’s request.

• the Minister provided the Applicant with partial access to two documents and refused access to the remaining documents relying on the deliberative processes exemption (s 47C)
• business information exemption (s 47G), and
• the personal privacy exemption (s 47F).

The Minister further relied on s 22 of the FOI Act in deleting certain material from the documents, on the basis that this material was irrelevant to the scope of the Applicant’s request.

On 10 February 2025, the Applicant sought Information Commissioner (IC) review under s 54L of the FOI Act.

In her submissions in the course of the IC review, the Minister no longer claimed that documents 1 and 2 were exempt in full under ss 47F and 47G and no longer claimed that certain information in documents 3 and 4 were exempt. However, the Minister submitted that the documents at issue contained material that was exempt under ss 47C, 47G, 47E(d), 47E(c) and 47F of the FOI Act. The Minister also contended that some information was irrelevant to the scope of the Applicant’s request under s 22 of the FOI Act.

During the course of the IC review, the Applicant agreed to narrow the scope of the IC review to document 4. The Applicant contended that the exemptions applied to document 4 had been applied incorrectly.

In light of the above, the issues remaining to be decided in the IC review were as follows:

1. Whether the material in document 4 that the Minister found to be irrelevant is irrelevant to the Applicant’s request.
2. Whether material in document 4 that the Minister maintained was conditionally exempt under ss 47C, 47E(c) and 47F was conditionally exempt under these provisions and if so, whether giving the Applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).

The Parties’ submissions

Deliberative processes exemption (s 47C)

The Minister submitted that the material it maintained was exempt under s 47C consisted of drafted responses which were excluded from a cleared final media response. The material represented opinions and advice of staff within the office, recorded during a consultation process within the office for the purposes of deliberations relating to the role of the Minister.

Personal privacy exemption (s 47F)

In her submissions, the Minister contended that material comprising the names, email addresses and telephone numbers of Australian government employees (employee information) is exempt from disclosure under s 47F of the FOI Act. The Minister also found the name of a journalist included as part of their email address to be exempt under s 47F.

The Minister submitted that:

• the personal information was not publicly available
• the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
• disclosure of the phone numbers could result in the individuals receiving unsolicited contact from members of the public
• public identification of the staff members poses a considerable risk that these individuals will be exposed to unnecessary reputational harm and risks to their privacy, security and safety, and
• the disclosure of the personal information may therefore cause those individuals undue stress and anxiety.

Regarding the above outlined conditional exemptions, the Applicant did not provide submissions about the requirements of s 47C or 47F specifically. Rather the Applicant submitted generally that disclosure would be in the public interest.

The Commissioner’s reasoning

Noting the above outlined Minister’s submissions, the Commissioner was satisfied that the relevant material was conditionally exempt under s 47C of the FOI Act.

The Commissioner was further satisfied that the material the Minister had conditionally exempted under s 47F was indeed personal information.

During the processing of the request, the journalist whose personal information was within the document at issue was consulted about the disclosure of their information. The journalist indicated they did not object to disclosure of the information. For this reason, the Commissioner was not satisfied that disclosure of this information would involve an unreasonable disclosure of personal information. The journalist’s name was therefore not exempt from disclosure.

Regarding the employee personal information within the document at issue, the Commissioner accepted disclosure of the material would be unreasonable in the circumstances.

This was because the information was not well known or publicly available and the individuals were not known to be associated with the subject matter of the documents. While there is a public interest in the transparency of government decisions and actions of government officers and others providing services to or on behalf of the government, the Commissioner gave limited weight to this factor in this case., The Commissioner considered disclosure of the employee information would not meaningfully contribute to meeting this public interest, given the nature of the information

Regarding the material that the Commissioner accepted was conditionally exempt under ss 47C and 47F of the FOI Act, the Commissioner then considered whether disclosure would be contrary to the public interest, as per s 11A(5) of the FOI Act.

The Public Interest Test (s 11A(5))

In considering whether release would be contrary to the public interest, the Commissioner considered the relevant mandatory factors listed in s 11B(3).

The Commissioner again noted the Applicant’s submission that there was significant public interest in understanding how the Department managed the program.  This included understanding the conduct of the Minister, senior officials and a consulting firm in relation to the Future Fit program. The Commissioner also noted that in the decision at issue, the Minister found as the only factor in favour of disclosure – that disclosing the documents that they held would promote the objects of the FOI Act by providing the Australian community with access to information held by the Australian Government.

Material comprising deliberative matter

Having considered the parties’ submissions together with the documents, the Commissioner was satisfied that the disclosure of the material conditionally exempt under s 47C would promote the objects of the FOI Act by facilitating access to government-held information by providing additional background and contextual information with respect to Government dealings.

The Commissioner noted the Minister’s submissions essentially contended that disclosure would result in the inhibition of frankness and candour. The Commissioner noted that frankness and candour arguments have been specifically discussed in previous ART and IC review decisions. The Commissioner also noted that although frankness and candour claims may be relevant in considering deliberative material and weighing the public interest, agencies and Ministers would generally have to demonstrate that the circumstances are special and specific in order for such a claim to be successful.

The Commissioner also noted that, as per the FOI Guidelines, public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes. As per the FOI Guidelines, Ministers should start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation would not be diminished by transparency of government activities.

The Commissioner therefore considered that the Minister had not established that disclosure of the relevant material would be contrary to the public interest.

The Commissioner therefore found that the public interest factors in favour of disclosure outweigh the factors against disclosure with respect to the material that was found to be conditionally exempt under s 47C. Therefore, the material that the Minister found to be exempt under s 47C was not exempt from disclosure.

Material comprising personal information

Again considering the submissions of the parties, the Commissioner was ultimately satisfied that disclosure of the employee information found to be conditionally exempt under s 47F could reasonably be expected to prejudice the right to privacy of the employees of the Minister and the Department.

The Commissioner therefore found that release of the material conditionally exempt under s 47F would be contrary to the public interest at this time.

Section 47E(c)

Due to finding that the employee information was conditionally exempt under s 47F, the Commissioner did not consider the application of s 47E(c) to the same material.

Irrelevant material (s 22)

The Commissioner accepted that the name of the officer who converted the document into PDF format for the purposes of responding to the Applicant’s FOI request was irrelevant and outside the scope of the IC review. This was because this information was added to the document after the date of the request, in the course of preparing the document for release in response to the FOI request.

Key takeaways

• Noting that the starting assumption is that public servants provide frank and candid advice generally, candour claims will generally need to be supported with evidence of special and specific circumstances in order to succeed. Without this evidence, it is likely that such claims will not be successful at IC review.
• Where personal information is genuinely peripheral to a request (such as the employee personal information in this case), the public interest in favour of disclosure of such material is likely to be given little weight, particularly where release would not meaningfully reveal government operations or the reasons for a government decision.

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.