The interplay between privacy and FOI: a guide on applying s 47F of the FOI Act

In honour of Privacy Awareness Week, which begins on 16 June, we thought it would be timely to explore the interplay between privacy and freedom of information law in Australia.  This article aims to provide guidance on how to make decisions under the Freedom of Information Act 1982 (Cth) (FOI Act) that appropriately protect the privacy of individuals while still promoting transparency, in line with the objects of the FOI Act.

Specifically, we explore the circumstances in which s 47F applies and how decision-makers should balance this against public interest considerations under s 11A(5), to ensure that decisions are made that appropriately weigh the privacy of individuals with access to government information.

Privacy v Freedom of Information?

Within information law in Australia, a fundamental tension exists between two key legal frameworks: freedom of information and privacy. The FOI Act promotes transparency and access to information held by the Commonwealth Government, based on the principle that such information is a national resource to be managed for public purposes. In contrast, Australia’s privacy laws seek to protect individual’s personal information, ensuring that all Australians have protections as to how their personal data is collected, used, and disclosed.

Section 47F of the FOI Act serves as a bridge between these two competing principles, providing a mechanism to conditionally exempt personal information from disclosure where it would be unreasonable to release it. This provision reflects the law’s attempt to balance the public’s right to know, with the individual’s right to privacy.

What is personal information?

‘Personal information’ is defined in both the FOI Act and the Privacy Act 1988 (Cth) (Privacy Act). Under s 6 of the Privacy Act, personal information is defined as any information or opinion about an identified or reasonably identifiable individual, regardless of its truth or form. Section 4 of the FOI Act adopts this same definition.

Therefore, in the interpretation of both Acts, personal information is information that identifies or reasonably identifies an individual, such as names, contact details, opinions, health records, etc. For the purposes of s 47F, as outlined in the FOI guidelines, the information needs to be about an individual, extending to information that may include joint information or information from which identity can be inferred.

However, there must be a connection between the information and the person, not just information which relates to the person, such as the colour of their phone (Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4, [63]). In the case of Jonathan Laird and Department of Defence [2014] AICmr 144, paragraph [14], the Privacy Commissioner noted that where it would be impracticable for a reasonable member of the public to use a certain piece of information to identify an individual, this information will not be personal information for the purposes of the FOI Act. In the relevant case, the Privacy Commissioner found that the DNA analysis of human remains of a World War II HMAS Sydney II crew member was not personal information, due to it being impracticable for a reasonable member of the public to use this information to identify the remains.

What is unreasonable disclosure of personal information?

Importantly, s 47F does not exempt all disclosures of personal information. Rather, it exempts from release disclosure which is unreasonable. Under ss 47F(2), and as discussed in Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437, [259], to decide whether disclosure is unreasonable requires consideration of the nature, sensitivity and public availability of the information, the likelihood of distress that could be cause with its release, the identity of the author, whether the information is well known, and other relevant factors. It is important to distinguish this threshold question of unreasonableness under s 47F from the later and separate requirements to assess whether disclosure would be contrary to the public interest under s 11A(5), although some factors may overlap in both inquiries.

In a leading decision regarding s 47F, ‘BA’ and Merit Protection Commissioner [2014] AICmr 9, at paragraph [64], the then-Information Commissioner stated that, while the object of the FOI Act is to promote transparency within government processes and activities, this must be balanced with the purposes of s 47F to protect personal privacy. However, as per ss 11(2), this balancing must not create an expectation whereby an applicant is expected to explain their reason for access (FOI Guidelines paragraph [6.139]). Nonetheless, although a person’s right of access under the FOI Act must not be adversely affected by their stated or assumed reasons for wanting access to certain information, the case of ‘FG’ and National Archives of Australia [2015] AICmr 26, at paragraphs [47] to [48], provides that decision-makers may consider the applicant’s reasons for making a request information in determining whether disclosure would be unreasonable where required under an exemption. Relevant to this point, under the FOI Act, there is no further control of information once it is released to an applicant.

Disclosure must be contrary to the public interest

Even if it is the case that the factors relevant to s 47F are met and material is found to be conditionally exempt, access must still be refused only if disclosure is contrary to the public interest under section 11A(5).

Public interest factors favouring disclosure include promoting government transparency and accountability, particularly where the information sheds light on the public administration, expenditure or public funds or decision-making processes. In Patrick and Department of Defence [2020] AICmr 31, the Information Commissioner found that releasing work-related travel expense claims of government employee advanced the public interest by enabling scrutiny of government resource use.

Public interest factors against disclosure may include the risk of harm to individuals, especially where disclosure involves sensitive personal information, such as health data or details from recruitment processes. In such cases, the potential for embarrassment, distress, or reputational damage may outweigh the limited public benefit, particularly if the information does not meaningfully contribute to public debate or government accountability.

Importantly, decision-makers must apply a proportionality assessment, carefully evaluating whether the expected benefits of disclosure outweigh the potential harms. This was emphasised in Warren; CEO, Services Australia (Freedom of Information) [2020] AATA 4557, where the Tribunal noted that the FOI Act’s objectives focus on scrutiny of government processes, not individuals. Therefore, disclosing APS employees' or private individuals names, for example, may only be justified where it meaningfully contributes to understanding or reviewing the government’s activities, not merely to expose individuals.

Consider whether third party consultation may be required

When a document contains third-party personal information, agencies must consider their consultation obligations under s 27A of the FOI Act. This provision ensures affected individuals are given a reasonable opportunity to make submissions opposing disclosure, particularly where the information is sensitive or not otherwise publicly available. In circumstances where disclosure may be detrimental to the applicant’s wellbeing, s 47F(4)-(7) allows access to be provided through a qualified person, such as a doctor, psychologist, or social worker. This safeguard strikes a balance between the applicant’s right of access and the potential harm from direct disclosure. The case of Re K [1984] AATA 252 illustrates how this mechanism can be used to protect applicants' mental health.

Freedom of information and privacy – a balancing act

Freedom of information laws aim to enhance transparency and democratic participation, while privacy laws seek to protect individuals from unwarranted intrusions. Section 47F of the FOI Act plays a critical role in mediating these competing values. Its proper application requires careful attention to context, sensitivity, and whether disclosure would be unreasonable. Ultimately, it is the public interest test under s 11A(5) that ensures neither openness nor privacy is given absolute priority, but that both are balanced fairly and lawfully.