Kline and the Registrar Administrative Review Tribunal (Freedom of information)

Kline and the Registrar Administrative Review Tribunal (Freedom of information) [2026] ARTA 63

This review decision concerns a decision of the Registrar of the Administrative Review Tribunal (ART) on an access refusal decision made under the Freedom of information Act 1982 (Cth) (the FOI Act).

Background

On 26 April 2022, the Applicant requested access to documents of the former Administrative Appeals Tribunal (AAT) under the FOI Act, concerning Deputy President Hanger’s decision in MDCT and National Disability Insurance Agency [2022] AATA 697.

On 8 June 2022, a delegate of the AAT made a decision on access (the Original Decision).

On or about 21 July 2022, the Applicant requested that the Information Commissioner review the Original Decision under s 54L of the FOI Act.

On 6 May 2024, a delegate of the Information Commissioner decided not to undertake an IC review of the Original Decision under s 54W of the FOI Act.

On 15 May 2024, the Applicant applied to the ART for a review of the Original Decision under s 57A of the FOI Act.

On 18 December 2024, a delegate of the ART made a Revised Decision on access, which included a decision to provide partial access to documents, and refusing access to others, relying on the following conditional exemption grounds:

• s 47C – deliberative processes, and
• s 47F – personal privacy.

The Applicant sought to challenge the exemption claims made in the Revised Decision, as well as the adequacy of the ART’s searches in the Original Decision.

Deliberative processes

Section 47C of the FOI Act provides that a document is conditionally exempt if the disclosure under the FOI Act would disclose a deliberative matter in the course of, or for the purposes of, the deliberative processes involved in the functions of an Agency.

The ART found that the documents plainly contained a deliberative matter as they comprised draft decisions and communications between the Deputy President and their associate in relation to research, proofing and editing and a summary of a report provided to the NDIA.

The ART also found that overall, disclosure of the documents would, on balance be contrary to the public interest, noting at [30]:

Draft reasons for decision are part of the Tribunal’s internal deliberative process and may be revised – at times very significantly – during the course of the Tribunal member’s thinking about, and internal reflection on, the issues and finalisation of the decision. It is important as a matter of public policy that Tribunal members can engage freely in preparing, revising and polishing draft reasoning without being inhibited by the risk of such drafts and lines of thinking being disclosed. Equally, internal communications between the Tribunal member and their staff could expose, for example, reasoning and lines of research and thinking which are ultimately not adopted or pursued by the member or are subsequently refined or polished. Accordingly, disclosure of such communications is, as the respondent submits, “apt to inhibit Tribunal members from seeking the benefit of recommendations and considerations from associates in the future, or otherwise inhibit frankness and candour in the giving of advice while engaging in deliberative processes”.

Personal privacy

Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure under the FOI Act would involve the unreasonable disclosure of personal information about any person, and that disclosure would be contrary to the public interest.

The Applicant sought access to the Deputy President’s personal email address, noting the Deputy President had used this non-AAT email account contrary to Australian Privacy Principle 11.

The ART noted the public interest weighs against the release of a person’s current contact details, particularly where the personal information is not readily available in the public domain. While accepting there is a public interest in confirming that the Deputy President had not complied with information management standard, provision of the Deputy President’s personal email address would add nothing further to that contention.

The ART was ultimately satisfied that the relevant email address was conditionally exempt under s 47F of the FOI Act and disclosure of this information would be contrary to the public interest test.

Adequacy of searches

The ART was satisfied on the available evidence that all reasonable steps were taken to locate the documents falling within the scope of the request.

The ART made the following observations:

• it was not necessary to contact former AAT members so that they could conduct searches of their own files and emails as they would not have access to the ART’s electronic systems
• it was reasonable not to use artificial intelligence (AI) to search for the relevant documents, noting that the ART’s policy established that the use of AI is not approved for use by the ART
• it was reasonable not to use wildcard searches to capture typographical errors because it would cover millions of potential combinations and thereby capture irrelevant documents.

Conclusion

The ART varied the Revised Decision so that access is granted to information served on the Applicant on or about 12 September 2025 but otherwise affirmed the Revised Decision.

Key takeaways

• Deliberative matters include matters relating to research, proofing and editing. It is material whether the deliberative process may be revised significantly from the ultimate decision.
• The protection of personal contact points (in this case the personal email address of the Deputy President’s) was found to constitute an unreasonable disclosure of personal information, and disclosure was found to be contrary to the public interest.
• Whether the use of AI constitutes a reasonable step to find documents will depend on the facts and circumstances of a case – the agency’s policy on the use of AI is a relevant consideration. Agencies should undertake a review of their AI policy (if any) and consider whether it is suitable and appropriate for administrative functions, including in FOI matters.