Gallagher and Secretary, Department of Immigration and Border Protection (Freedom of Information)

This matter concerned an application for freedom of information by Gallagher (the applicant) against the Secretary, Department of Immigration and Border Protection (the agency). The applicant sought access to documents, and the agency claimed that certain documents were exempt under section 47E(c) of the *Freedom of Information Act 1982* (Cth), which relates to documents where disclosure would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or an agency. The Deputy President of the Administrative Appeals Tribunal was required to determine whether the agency had established that the release of the documents would have such an effect.

The primary legal issue before the Tribunal was whether the agency had demonstrated that disclosure of the requested documents would have a substantial adverse effect on the management or assessment of personnel, as contemplated by section 47E(c) of the *Freedom of Information Act 1982* (Cth). This involved considering the nature of the allegations made by the applicant, which related to the processing of refugee claims and involved serious and personal matters concerning staff, potentially leading to action under the Australian Public Service Code of Conduct. The Tribunal also had regard to the Guidelines issued by the Australian Information Commissioner under section 93A of the Act, which require agencies to articulate the particulars of predicted effects and the reasons behind them.

In its reasoning, the Tribunal referred to previous decisions such as *Wilson v Australian Postal Corporation*, where it was held that disclosure of staff statements regarding an incident could lead to a reluctance by staff to provide future statements, thereby hindering management's ability to address misconduct and impacting staff morale. The Tribunal noted that an agency cannot merely assert an adverse effect but must provide specific details and a reasonable expectation that the effect will occur. The Tribunal considered the applicant's allegations, which were of a serious nature and involved potential breaches of the Code of Conduct, and assessed whether their disclosure would reasonably be expected to have a substantial adverse effect on personnel management or assessment within the agency, applying the principles outlined in the Guidelines.