OAIC Reporting Update

On 19 March 2025, the Australian Information Commissioner published a Report to the Attorney-General titled: Messaging apps: a report on Australian Government agency practices and policies. The Report discusses the Commissioner’s review of government agency policy and procedure in respect of messaging apps, noting that:

• 16 of the 22 agencies permitted the use of messaging apps, 3 prohibited their use, and 3 did not have a position.
• 12 of the 16 agencies that permitted their use endorsed, encouraged or communicated a preference for the use of Signal (one of these also endorsed, encouraged or preferred WhatsApp).
• Only half of the agencies that permitted their use had policies or procedures about their use for work purposes.
• Policies and procedures should reflect how legislated rights under freedom of information (FOI), privacy, record management and security and classification requirements align with use the use of messaging apps.

The Information Commissioner’s findings indicate that the Commonwealth Government’s mindset must change around their staff’s use of work and personal devices.

The OAIC’s Media release and the Report can be found here: Australian Information Commissioner calls on government agencies to improve settings around messaging apps | OAIC and Messaging apps: a report on Australian Government agency practices and policies | OAIC.

Are text or instant messages captured by the FOI Act?

Public interest in accessing text messages or instant messages of government department/agency personnel has been on a steady rise[1], accordingly, the relationship between work devices and the Freedom of Information Act 1982 (Cth) (FOI Act) has been evolving.

Both case law and response from the regulator related to this topic serve as useful reminders for department/agency personnel that:

1. text messages and instant messages sent in the course of department/agency functions and activities can be subject to FOI requests, and
2. depending on the scope of the FOI request and the context and content of the message/s, an FOI request could capture messages across both work and personal devices.

Are text messages and instant messages captured by FOI?

The FOI Act broadly defines ‘document’, which includes information ‘recorded in any form.’[2] As such, a ‘document’ has been interpreted as:

‘…text messages and social media such as instant messaging (IM) that support the business of an agency fall within the definition of ‘document’.[3]

The source of documents such as text messages and emails can include both work issued and personal mobile phones, the OAIC noting that:

‘… text messages on work issued mobile phones, documents on personal devices on which software has been installed so the device can be used for work purposes, and public servants using applications such as ‘WhatsApp’ on work issued devices to exchange text, images and video or audio messages may be ‘documents of an agency’ on the basis that they can be said to be within the constructive possession of the agency.’[4]

Department/agency staff should be aware that messages of a work nature on both personal and work devices are documents for the purpose of the FOI Act. This means that they may be caught by FOI requests, and if so, they will need to be disclosed unless an exemption provision applies.

Note: These documents will be assessed in accordance with the usual FOI decision making process. Personnel should not assume that this material will necessarily be exempt, as the relevant FOI decision maker will need to consider the application of exemption provisions, and the balancing of the public interest test prior to considering any redaction or disclosure.

What about the case law?

Thomas; Secretary, Department of Defence and (Freedom of Information) [2018] AATA 604 serves as important case law for considering the release of agency/department text messages:

• This case required consideration of whether text messages considered relevant to an FOI request would be in the public interest.
• Ultimately, the text messages were not disclosed, as it was argued that Defence staff were required to communicate freely.
• However, an important take away from this case is that in accordance with the FOI Act [4], the Tribunal did not consider seniority of the relevant parties sending the text messages to be relevant factor. 

'ATM' and Minister for Communications (Freedom of information) [2025] AICmr 15 (21 January 2025), recently confirmed that there is an expectation that text messages and other instant messages will be captured in FOI search and retrieval exercises. In finding that the Minister had not conducted reasonable searches in accordance with section 24A of the FOI Act, FOI Commissioner Pirani found at [16]

“…There is no evidence that the Minister or anyone acting on their behalf have undertaken searches of hardcopy documents or files, records management or case management software, emails within the ministerial office, direct messages, or text messages.”

In the footnote for this paragraph Commissioner Pirani further clarified that the reference to messages referred to “whether on WhatsApp, Signal, Microsoft teams or any other relevant messaging software.”

[1] See: Scott Morrison must reveal any text messages from QAnon friend, information watchdog orders | Scott Morrison | The Guardian; SMS exchanges between AFP commissioner and PwC 'mate' revealed, as top cop faces questions over conflict of interest - ABC News; Human Rights Commission staff worked to undermine Voice attack

[2] See s 4 of the FOI Act

[3] What is considered a document under the Freedom of Information Act 1982? | OAIC

[4] See para 2.45 of the OAIC FOI Guidelines