From reasonable expectations to solid proof: the evidentiary step-up in Freedom of Information litigation

Freedom of information (FOI) decision-making at an agency level is managed with policy reasoning and common sense statutory interpretation of the FOI Act, FOI Guidelines and FOI case law. Exemptions are generally applied by FOI decision-makers based on internal business area advice and the relevant agency’s individual operational requirements along with any identified risks surrounding disclosure of requested information.

Usually, decision-makers will collect evidence through email consultations with key stakeholders and through the completion of search minutes. This is the evidence that is then relied on when proceeding to an access grant or refusal decision, and when weighing up the factors for or against disclosure of certain material.

However, once a matter proceeds to the Australian Information Commissioner (IC), Administrative Review Tribunal (ART) or even to the Federal Court of Australia, the expectations around the evidence required to support your decision changes and increases in formality.

At the external review stage, agencies are required to produce detailed statements or affidavits of subject-matter witnesses and to present careful considered exemption claims. Interestingly, over many years of servicing FOI litigation for the Commonwealth, we have observed that FOI litigation is increasing in formality and growing in evidentiary requirements, which can often take agencies by surprise.

Why the step-up in evidence matters

At the initial or internal review decision making stage, it is open to a delegated decision-maker to make a finding as to whether an exemption provision applies, based on the materials before them (i.e., the documents at issue, evidence, the FOI Act, the FOI Guidelines and case law).

However, at the IC or ART review stage, solely relying on a decision-maker’s assertions, and providing submissions without supporting evidence, is unlikely to meet the evidentiary onus.  Instead, at this stage agencies must show how and why harm will occur, through statements, sworn affidavits and other supporting annexures to submissions.

We have prepared some practical tips for agencies and practitioners to keep in mind when preparing for FOI administrative review.

Practical tips for agencies and practitioners

1. Identify the right witnesses

• Choose deponents with subject-matter knowledge or operational experience.
• If multiple exemptions or refusal reasons are claimed, consider multiple deponents—each addressing their respective area/s of expertise with respect to the various exemptions claimed, or other refusal reasons. This preserves credibility and ensures the agency’s position is properly supported.

2. Support affidavits with annexures

• Annexures give affidavits evidentiary weight. If you can annex supporting documents, statistics, examples of past prejudice or harm, internal data, or documents that illustrate the risk of harm this will greatly increase the credibility of your affidavit.
• If an agency has previously experienced adverse consequences from disclosure, include a record of that as an annexure—it can be more persuasive than hypothetical reasoning. Examples of this kind of evidence might be investigation reports, Work Health and Safety (WHS) reports, media articles describing the event, or documents recording staff feedback.

3. Be specific and detailed

• Whilst formal rules of evidence don’t apply at the IC or ART, avoid broad opinion evidence where possible. Instead articulate past experiences or harm or expectations of future applicant behaviour or the adverse consequences arising from disclosure, based on your deponent’s experiences. 
• Avoid vague or formulaic language, and don’t include material that reads like submissions! Include factual evidence, past experiences and operational details that explain why an exemption, or refusal reason applies.
• Demonstrate that the risk is real and evidence-based, not speculative.

4. Consider open vs. closed evidence

• Be strategic about whether parts of your evidence should be provided in a closed affidavit, a closed session, or under a non-publication order.
• Without these protections, you risk disclosing in your evidence the same or similar information subject to your exemption claim.
• Anticipate this issue early and make the necessary procedural applications before evidence is filed or heard.

5. Prepare your witness

• Witnesses should be prepped and ready to give evidence confidently, stay within their expertise, and be ready for cross-examination.
• Avoid asking a witness to give evidence beyond their expertise or knowledge.
• Ensure affidavits are carefully considered before signing. Drafting and finalising evidence takes time, so factor this into your timetable and clearance schedule.  

Key takeaways

The evidentiary requirements in FOI matters change significantly as a matter progresses through the external review chain. If a matter reaches external review, agencies are expected to present:

• affidavits that are detailed and specific
• annexures that provide documentary proof, and
• multiple witnesses matched to each exemption claim. 

For practitioners, it’s important to remember that FOI litigation is not just about simply restating or supporting the original decision makers position — instead it’s decision de novo, and an agency is required to satisfy the relevant external review body that the exemption claims or refusal decision remains the correct and preferable decision at this new point in time. You will only achieve this result through carefully considered submissions and strong supporting evidence.  

We represent Commonwealth entities at all levels of the FOI review chain. From FOI decision-making to Federal Court appeals, our team of expert information lawyers have some of the strongest experience in the Commonwealth when it comes to FOI. We’d be pleased to discuss strategy or approach to your next FOI request or appeal matter and look forward to hearing from you.