Case note: PricewaterhouseCoopers and Australian Taxation Office (Freedom of information)
22 September 2026
In this recent decision, the Freedom of Information Commissioner, Alice Linacre (the Commissioner) discusses the application of s 38 of the Freedom of Information Act 1982 (FOI Act).
The Commissioner affirmed the decision of the Australian Taxation Office (ATO) to refuse access to certain material under s 38 of the FOI Act.
Background
- On 7 September 2021, the applicant applied to the ATO seeking access to documents which related to the interpretation of certain aspects of taxation law.
- On 21 October 2021, the ATO identified 324 documents within scope of the applicant’s request. The ATO decided to deny access to this material under s 38 of the FOI Act, on the grounds that the documents contain protected information, the disclosure of which is prohibited under the Taxation Administration Act 1953 (TA Act), as specified in Schedule 3 of the FOI Act.
- The applicant sought internal review of this decision and narrowed the scope of request. Upon review, the ATO maintained that the documents were exempt under s 38 of the FOI Act.
- The IC review considered whether the documents that the ATO identified as exempt are exempt under s 38.
Section 38 of the FOI Act
A document will be exempt under s 38 of the FOI Act if disclosure is prohibited in Schedule 3 or if an enactment expressly provides that s 38 will apply.
Relevantly, s 355-25 of Schedule 1 of the TA Act is specified in Schedule 3 of the FOI Act.
'Protected information’ is relevantly defined in s 355-30(1) of the TA Act as follows:
Protected information means information that:
(a) was disclosed or obtained under or for the purposes of a law that was a taxation law (other than the Tax Agent Services Act 2009 ) when the information was disclosed or obtained; and
(b) relates to the affairs of an entity; and
(c) identifies, or is reasonably capable of being used to identify, the entity.
Parties’ submissions
In their submissions, the applicant submitted that providing documents, which preserve third party confidentiality, can be done by way of editing the documents. As an example, the applicant submitted the ATO’s existing practice of publishing edited private rulings demonstrates that it is possible for the ATO to protect the privacy of taxpayers whilst disclosing their legal reasoning to particular fact patterns or circumstances.
Conversely, the ATO submitted that the documents contain information specific to the circumstances of third parties. The ATO submitted that all of the material contained in the documents was entwined with information about the third parties, which means the ATO is therefore unable to extrapolate ‘general legal reasoning’ and provide edited versions of the documents under s 22 with the affected taxpayers’ information removed.
Consideration
The Commissioner reviewed unredacted copies of the ATO documents. The Commissioner was satisfied from the character, content, and context that:
- the information was disclosed or obtained for the purposes of a taxation law
- the information relates to the taxation affairs of entities other than the applicant, and
- the third parties are reasonably identifiable from the information.
The Commissioner was therefore satisfied that the documents at issue contained protected information within the meaning of the TA Act, and disclosure of the information to the applicant is prohibited under s 355-25 of Schedule 1 of the TA Act.
The Commissioner therefore found that the documents at issue were exempt under s 38 of the FOI Act.
The Commissioner considered whether an exception to s 38 applied. Section 38 will not apply where the relevant secrecy provision does not prohibit disclosure of the documents to the applicant (s 38(1A)). Secondly, material will not be exempt where it is personal information about the applicant (s 38(2)).
The Commissioner found that neither of the two relevant exceptions under s 38(1A) or s 38(2) were applicable in the circumstances.
The Commissioner therefore agreed that legal reasoning could not be separated from the information regarding taxation affairs of third parties and that edited copies were not possible for production. The Commissioner therefore found the material to be exempt under s 38 of the FOI Act.
Key takeaways
- While agencies should always consider whether material is able to be deleted to allow documents to be released in part, in some circumstances it may not be possible to do so.
- Section 38 of the FOI Act will not apply where the requested material consists solely of the personal information of the applicant, or where the secrecy provision do not prohibit disclosure of the documents to the applicant.
Looking for more information on s 38 of the FOI Act? Click here to read our guide to applying s 38(2) of the FOI Act.
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.
