Besser; Secretary, Department of Employment and (Freedom of information)

This matter concerned an application by Mr Linton Besser, a journalist, for access to documents held by the Department of Employment relating to investigations of providers funded under an employment services program. The Department had identified 45 documents, classifying nine as wholly exempt and 36 as partly exempt, relying on various provisions of the Freedom of Information Act 1982 (Cth), including those concerning law enforcement, legal professional privilege, deliberative processes, Commonwealth financial interests, personal privacy, and business information. Mr Besser sought an Information Commissioner review of the Department's decision.

The primary legal issues before the Senior Member were whether the disclosure of the documents would unreasonably affect the employment services providers adversely in respect of their lawful business, commercial or financial affairs, and whether access to the documents, on balance, would be contrary to the public interest. The Senior Member was required to consider the application of section 47G of the Freedom of Information Act 1982 (Cth) concerning business information and section 11A(5) regarding the public interest test for conditionally exempt documents.

The Senior Member reasoned that disclosure of the documents would name providers as having been the subject of unsubstantiated allegations or investigations by the Department, which could reasonably be expected to have an adverse effect on their business, commercial, or financial affairs. This adverse effect was considered unreasonable for the purposes of section 47G. Furthermore, the Senior Member found that, on balance, access to the documents at that time would be contrary to the public interest under section 11A(5).

Accordingly, the Senior Member varied the decision under review. The Senior Member ordered that copies of the 19 documents in issue be provided to Mr Besser, modified under section 22 of the Freedom of Information Act 1982 (Cth) by the deletion of the exempt material that identified the employment services providers.