Case note: Endacott v Chief Executive Officer, Services Australia

Late last week we saw the publication of a recent FOI matter before the Administrative Review Tribunal (Tribunal). The decision by Deputy President Britten-Jones in Endacott and Chief Executive Officer, Services Australia (Freedom of Information) [2025] ARTA 2519, will be of particular interest to any Agencies who routinely deal with the application of s 38 of the Freedom of Information Act 1982 (Cth) (FOI Act), which exempts documents to which certain secrecy provisions apply. 

The review matter related to three (3) different FOI Applications and 3 subsequent decisions of the Information Commissioner (IC). 
 
The primary issue in dispute was Services Australia’s application of the exemption under s 38 of the FOI Act and the associated child support secrecy provisions listed in Schedule 3 of the FOI Act, being s 16(2)(b) of the Child Support (Registration and Collection) Act 1988 and s 150(2)(b) of the Child Support (Assessment) Act 1989.
 
Section 38(1)(b)(i) provides that information will be exempt from disclosure if disclosure of the document, or information contained within the document subject to an FOI request, is prohibited under a secrecy provision listed in Schedule 3 of the FOI Act.
 
However, s 38(2) provides an exception to this exemption, where a person requests access to ‘protected information’ about themselves. 
 
At paragraphs [3] to [12] the Tribunal sets out the relevant legislative framework. 
 
At paragraphs [13] to [21] the Tribunal outlines the three FOI requests. All three requests sought access to documents relating to the Applicant’s Child Support matter under Part III of the FOI Act. The Applicant also contended that the second and third requests contained amendment requests under Part V of the FOI Act.

Amendment Requests

Paragraphs [22] to [26] of the Decision deal with the amendment requests. The Tribunal confirms the Respondent’s position that the Tribunal does not have jurisdiction to consider the amendment requests because there were no relevant reviewable decisions arising from Decisions 2 and 3 before the Tribunal. 
 
At [24] the Tribunal accepts the Respondent’s position, finding that that the IC did not make a relevant decision relating to amendment under Decisions 2 and 3. This is because there was no valid amendment request made to Services Australia under section 49 of the FOI Act, nor did Services Australia or the IC proceed to a decision to exercise the discretion to amend under s 50 of the FOI Act. 
 
The Tribunal then finds ,'The Tribunal has limited jurisdiction to review decisions under s 57A(1) of the FOI Act. It has jurisdiction to consider a decision of the IC made under s 55K on an IC review, but if the IC did not make a decision, then there is nothing to review.'
 
At [25] of the Decision, the Tribunal does, however, note that the Applicant is entitled to submit a new application for amendment.

Child Support Exemption 

[27] to [36] of the Decision set out the procedural history of the 3 decisions. 
 
[37] – [50] set out the matters for consideration by the Tribunal. 
 
Helpfully, at [37] the Tribunal confirms the its regard to an updated schedule of documents provided by Services Australia and confirms its role as a decision maker ‘de novo’ as follows: 

'The procedural history including the updated schedule of documents in issue is important because it reflects the fact that the Tribunal and the primary decision-maker exist within an administrative continuum.10 The review by the Tribunal is a merits review process by which the Tribunal determines the correct or preferable decision in the circumstances before it. The Tribunal stands in the shoes of the original decision-maker but makes a decision on the material before it. The circumstances in which the Tribunal is to make its decision include the updated schedule of documents in issue which reflect the disclosure of some documents to the Applicant after the IC Decisions were made. The question for the Tribunal is whether the documents in the updated schedule are exempt from disclosure. In that sense the Tribunal has moved on from the particulars of the decisions made by the IC which the applicant erroneously focuses on.' 

At [38] to [39] the Tribunal confirms the breadth of its decision making powers under s 58 of the FOI Act, and its ability to review the documents reflected in the updated documents schedule. 
 
At [40] to [48] the Tribunal deals with various issues that arose in respect of the scope of the proceedings and the Tribunal’s consideration. 
 
At [49] the Tribunal explains that the Applicant raised numerous discrepancies between redactions made in previous releases. The Respondent objected to this on the basis that there was no utility in identifying past discrepancies when the Tribunal was being tasked with considering the redactions applied under section 38 of the FOI Act in the latest schedule of documents. Importantly, the Respondent contended that information previously released to the Applicant could not be redacted under s 38 of the FOI Act, as disclosure in the circumstances of a secrecy provision did not amount to waiver of that exemption. 
 
We note that this is materially a different approach to that considered by the IC in the case of conditional exemptions, where past disclosure of the same or similar information will generally weigh against a conditional exemption claim. You can see our previous case summary for more on this concept here: Case note: Linda Poulton and Department of Climate Change, Energy, the Environment and Water (Freedom of Information).
 
Part way thorough [49] the Tribunal helpfully confirms that:

'I accept the Respondent’s submissions because there is no exception in the secrecy provisions for where the information is in the public domain. As such, there is no basis for an argument that just because a word has been disclosed in one document but redacted in another, that the word is not subject to the exemption in s 38(1) of the FOI Act.'

The remainder of the Tribunal’s decision deals with the consideration of the documents in issue and the application of s 38 of the FOI Act, namely at [56] the Tribunal confirms that it is required to consider:

• whether the redacted parts of the documents in issue contain 'protected information'?
• if they contain protected information, is the information 'concerning another person', such that the Child Support secrecy provisions apply?
• whether an exception applies (either that the Child Support Acts permit disclosure to the Applicant, or the information is the personal information of the Applicant)?

Having regard to the documents, the Tribunal forms the opinion that they contain information that meets the definition of protected information under the Child Support Acts, that being information which concerns a person, and has been disclosed to or obtained by the another person the course of the Agency’s duties under or in relation to the Child Support Acts, or is otherwise communicated in circumstances authorised by the Child Support Acts. Having undertaken this assessment the Tribunal is satisfied that the threshold in 38(1) is met. 

At [64] the Tribunal then considers whether the exception in 38(2) applies, that being if there is information within the documents that contains the personal information of the Applicant. 
 
Paragraph [65] confirms that the FOI Act adopts the definition of personal information taken from the Privacy Act 1988 (Cth) (Privacy Act) and refers to the FOI Guidelines at [5.137].
 
The Tribunal then categorises the types of information which have been found to be exempt under s 38(1) of the FOI act as being: 

1. protected information relating to someone other than the Applicant (category 1)
2. protected information containing information about another person that has been provided by the Applicant (category 2), and 
3. protected information that is mixed personal information of both the Applicant and another person (category 3).

In relation to categories 1 and 2, the Tribunal finds that the exception in s 38(2) does not apply because the information is does not constitute the personal information of the Applicant. 
 
In respect of category 3, the Tribunal finds (our emphasis added) 'the information in these documents relate to both child support parties and therefore will not be considered the personal information of the Applicant. The exception in s 38(2) does not apply because the documents contain mixed personal information. The FOI Guidelines at [5.137] state that the exception applies only to personal information about the FOI applicant and not to mixed personal information.'
 
At [68] the Tribunal confirms (although it did not appear to be an issue in dispute between the parties) that where information is intermingled and cannot be separated, the exception in 38(2) does not apply, citing the previous approach taken in AIF and Services Australia [2024] AICmr 51 at [39].
 
Turning to information that solely relates to the Applicant, the Tribunal finds that the exception in s 38(2) has been applied appropriately and that no further information subject to redaction could be released under 38(2). At [69] the Tribunal provides the following helpful clarification in respect of mixed personal information, comprising of mixed personal and protected information which has been provided by the Applicant themselves (our emphasis added):

'It is apparent from my consideration of the documents in issue that a considerable amount of personal information that is exclusively about the Applicant has been disclosed. For example, there are notes of telephone conversations with the Applicant and letters to and from the Applicant that have only been partially redacted because some of the information is ‘mixed personal information’, that is, personal information about the Applicant which, if disclosed, would also reveal personal information about another individual. Even if ‘mixed personal information’ is provided by the Applicant (and would therefore be known to him), the exception in s 38(2) will not apply. The redactions that have been applied in this regard are appropriate.'

Following this assessment, Orders are made affirming the decisions under review. We note that this decision will have the standard 28 day appeal period.

It is not a common occurrence for the Tribunal or IC to deal with secrecy provisions and the application of s 38 of the FOI Act so, this new decision provides some helpful clarification and confirmation for agencies to consider for all of the secrecy provisions listed in Schedule 3. If you’d like to reach out to discuss secrecy and its interactions with FOI, please contact our information law team specialists Molly, Chantal or Kelly. 

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