HLWM and National Disability Insurance Agency (Freedom of information) - [2025] ARTA 1854

HLWM and National Disability Insurance Agency (Freedom of information) [2025] ARTA 1854 (15 August 2025)
Applicant/s:  HLWM
Respondent:  National Disability Insurance Agency
Tribunal Numbers:              2020/2970, 2020/2972, 2020/2973, 2020/2974, 2020/2976
2020/2978, 2020/2979, 2020/4171

Tribunal:General Member J Ross
Place:Canberra
Date: 15 August 2025

Decision:The Tribunal varies the decision under review with respect to documents 7 and 8 finding that there is no proper claim for exemption pursuant to s 47E(c) of the Freedom of Information Act 1982 (Cth).
The Tribunal affirms the decision under review with respect to documents 1-6 and 9-13.

.............................[SGD].......................................
General Member J Ross
Catchwords
FREEDOM OF INFORMATION – request for access to documents – conditional exemptions claimed – certain operations of agencies – personal privacy – whether documents exempt – whether, on balance, access would be contrary to public interest – whether all reasonable steps taken to locate documents – decision varied
Legislation
Freedom of Information Act 1982 ss 11A, 11B, 24A, 47E(c)
Public Interest Disclosure Act 2013 (Cth)
Cases
Carver and Fair Work Ombudsman [2011] AlCmr 5
‘DX’ and National Offshore Petroleum Safety and Environmental Management Authority [2014] AlCmr 132
‘EH’ and Department of Defence [2015] AlCmr 2
‘EK’ and Department of Human Services [2015] AlCmr 6
Haywood and Comcare (Compensation) [2023] AATA 3360
Re Wilson and Australian Postal Corporation [1994] AATA 189
Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900
Chu v Telstra Corporation [2005] FCA 1730
Secondary Materials
Office of the Australian Information Commissioner, FOI Guidelines (Combined November 2023)
Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024
Statement of Reasons
INTRODUCTION

By applications dated 14 May 2020 and 13 July 2020, the Applicant seeks review of 8 decisions made by the National Disability Insurance Agency (Respondent or the Agency), under the Freedom of Information Act 1982 (Cth) (FOI Act), between 24 September 2017 and 31 October 2019.
BACKGROUND
These 8 matters have a long history in the Tribunal. During the course of proceedings the Respondent has received access to some 900 documents in whole or part under the 8 FOI requests which came to the Tribunal. A summary of the 8 matters is contained in the Respondent’s Statement of Facts, Issues and Contentions (RSFIC). At the time of hearing, 5 matters remained before the Tribunal with 13 documents in total remaining in issue.
An extensive background and summary of the matters is not detailed in these reasons because a confidentiality order was made on 1 July 2020 pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (ART Act), to prevent the publication of the Applicant’s name and restricting the use of material tending to identify the Applicant.
The need to protect the identity of the Applicant necessarily restricts me from describing some of the facts and evidence, except for in general terms. The documents which remain in issue relate to the Applicant’s employment with the Agency and associated post-employment events.
The Applicant says that the proceedings in the Tribunal to obtain release of the documents are so they can be fully appraised of all relevant information in order to pursue a complaint about the Respondent’s handling of investigations related to their employment with the Agency.[1] The Applicant says that the remaining few documents are sought to enable them to understand the extent of what they consider to be wrongdoings, unethical practices and disregard for the Australian Public Service Code of Conduct.[2]
[1] Applicant’s Statement of Facts, Issues and Contentions at [2].
[2] Ibid at [3].
Between 2015 and 2017, the Applicant made disclosures to the Agency under the Public Interest Disclosure Act 2013 (Cth) (PID Act) relating to the conduct of other Agency employees involved in matters relating to their employment, Code of Conduct investigation, and termination. In 2018, the Applicant made further disclosures under the PID Act relating to, among other things, their previous PIDs and their outcomes. The Agency appointed an investigator to investigate this disclosure.
ISSUES FOR DETERMINATION
The issues for the Tribunal to determine are:
(a)Searches for documents – whether sufficient searches were undertaken for documents: Matter 8, and
(b)Operations of an agency – whether certain documents, or parts of documents, are exempt under s 47E(c) of the FOI Act: Matters 1, 3, 4, 7 and 8.
The Tribunal is also required to consider the Applicant’s request for a non-publication order under s 70 of the ART Act to restrict the publication of this decision and reasons.
At the start of the hearing the Respondent requested the Tribunal to vary the decision under review under s 31 of the ART Act. This was because it proposed to release to the Applicant all but one sentence in a four-sentence email contained in document 7. Upon hearing the Applicant’s consent to this, the Tribunal verbally consented under s 31 of the FOI Act to vary the reviewable decision.
It was also raised by the Respondent whether documents 1 and 5 continue to be in issue because they contain names of staff members, and the content in which those appear contain concerns about the mental health and wellbeing of those staff members. The Applicant confirmed those documents were still in issue.
In the hearing, the Respondent submitted that essentially the contest in this matter is around the balancing of the public interest. That is, between maintaining the effectiveness of the Agency’s processes for the management and assessment of personnel on the one hand and the public interest in exposing enough information to provide for accountability and transparency around the manner in which complaints are dealt with to provide assurance to public that the Agency has appropriate processes in place to deal with complaints and disclosures.
RELEVANT LEGAL PRINCIPLES
Under s 11(a) of the FOI Act, every person has a legally enforceable right to obtain access under the Act to a document of an agency such as the Respondent, other than an exempt document.
Section 24A(1) of the FOI Act provides:
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
The FOI Guidelines relevantly provide:
3.86 It is not enough for an agency… to simply assert that the document cannot be found or does not exist before taking any demonstrable steps to try and find the requested document.
3.87 An agency… can also refuse a request for access if it has taken contractual measures to ensure it receives a document from a contracted service provider but has not done so after taking all reasonable steps to receive the document in accordance with the contractual measures (s 24A(2)).
3.88 The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.
3.89 Agencies… should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment... At a minimum, an agency…should take comprehensive steps to locate documents, having regard to:
·the subject matter of the documents
·the current and past file management systems and the practice of destruction or removal of documents
·the record management systems in place
·the individuals within an agency… who may be able to assist with the location of documents, and
·the age of the documents.
The Respondent contends that the documents which the Applicant presses before this Tribunal are exempt pursuant to s 47E(c).
Section 47E(c) of the FOI Act conditionally exempts documents where disclosure would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel.
Section 11A(5) provides that access must generally be given to a conditionally exempt document unless it would be contrary to the public interest.
Section 11B(3) of the FOI Act lists the factors to be taken into account in deciding whether access to a conditionally exempt document would be, on balance, contrary to the public interest under s 11A(5):
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Section 11B(4) of the FOI Act lists the factors that must not be taken into account in deciding whether access would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Section 11B(5) provides that in working out whether access to the document would, on balance, be contrary to the public interest regard must be had to the FOI Guidelines.
The FOI Guidelines at [6.103] provide that for the exemption in s 47E(c) to apply the document must relate to either:
· the management of personnel – including broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and work health and safety
· the assessment of personnel – including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.
The FOI Guidelines explain at [6.238]:
To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information.
CONSIDERATION OF PARTIES’ SUBMISSIONS
Respondent’s submissions
Searches
The Respondent contends that all reasonable steps have been taken to identify documents relevant to the Applicant’s requests in accordance with s 24A(1) of the FOI Act. The Respondent also contends that no further documents exist or can be located. The Respondent understands the issues of concern to the Applicant regarding searches are confined to discrete topics, which arise largely in the context of Matter 8.
The Respondent submits that the requirement to take ‘all reasonable steps’ to locate documents is not a requirement to examine all documents in the possession of the Agency or to ‘leave no stone unturned’ but to be satisfied that it has done all that could reasonably be done to find the documents.[3] The Respondent further submits that ‘reasonably’ in this context means ‘moderate; not absurd; not greatly less or more than might be expected’.[4]
[3] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [21] with reference to the decision in Chu v Telstra Corporation [2005] FCA 1730 at [35].
[4] Ibid with reference to the decision in Chu and Telstra Corporation [2007] AATA 1748 at [103].
The Respondent also submits that whether ‘all reasonable steps’ have been taken is a question of fact in the individual case to be decided having regard to matters such as the terms of an Applicant’s requests, the document creation and retention practices in an agency and the steps taken by the Agency to identify and find documents requested by an applicant.[5] The Respondent further submits that also of relevance is whether the evidence establishes there are, in fact, further documents to be found.[6]
[5] Ibid at [22].
[6] Ibid with reference to the decision in Viewcross Services Pty Ltd Telstra Corporation Limited [2003] AATA 1025 at [55].
The Respondent submits that evidence given on affidavit from a government lawyer (Government Lawyer Affidavit) describes in detail the searches performed by the Respondent in processing the Applicant’s requests, particularly in relation to Matter 8.
The Respondent submits that the affidavit evidence also annexes and addresses the correspondence passing between the parties in the course of this proceeding, by which the search issues of concern to the Applicant have been narrowed, articulated by them with specificity, and addressed by the Respondent.[7] The Respondent submits that the results are that it has done all it reasonably can to address the concerns the Applicant has articulated regarding sufficiency of searches.[8]
[7] Ibid at [24].
[8] Ibid at [25].
Section 47E(c) – Management or assessment of personnel
The Respondent submits material that it claims is conditionally exempt under s 47E(c) of the FOI Act relates to both the management and assessment of Agency personnel.
The Respondent submits that s 47E(c) of the FOI Act is frequently applied in similar contexts and sets out a ‘wealth’ of Tribunal and Information Commissioner decisions that it regards as supporting the following principles:
(a)Candour is essential when investigating staff complaints, especially those of misconduct (such as bullying) made by other staff. The efficacy of investigative processes (which are part of managing personnel) depends on it.[9]
(b)Staff may be reluctant to provide information and cooperate with investigators if they are aware that the subject matter of those discussions may be disclosed through the FOI process. This reluctance amounts to a substantial adverse effect that can reasonably be expected.[10]
(c)Where staff have an expectation that staff information will be managed confidentially by an agency, defeating that expectation can damage staff morale and trust, thereby having a substantial adverse effect on their management.[11]
(d)The public interest in ensuring internal investigative processes are effective, weighs in favour of exempting material that is conditionally exempt under s 47E(c).[12]
(e)It is not in the public interest to disclose allegations that have not been ultimately investigated and determined.[13]
[9] Ibid at [34.1] with reliance on Tribunal and Court decisions: De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2016] AATA 230; ‘ANW’ and Department of Defence (Freedom of information) [2024] AICmr 203; ‘YB’ and Department of Veterans’ Affairs [2021] AICmr 52.
[10] Ibid at [34.2] with reliance on Tribunal and Court decisions: Plowman and Australian Securities and Investments Commission (Freedom of information) [2020] AATA 4729 [16]; Carver and Fair Work Ombudsman [2011] AlCmr 5; ‘LC’ and Australia Post (Freedom of information) [2017] AICmr 31 [21]; ‘QM’ and Australian Federal Police (Freedom of information) [2019] AICmr 41 [36]; ‘RM’ and Australian Taxation Office (Freedom of information) [2020] AICmr 1 [30].
[11] Ibid at [34.3] with reliance on Tribunal and Court decisions: Re Wilson and Australian Postal Corporation [1994] AATA 189; Paul Cleary and Special Broadcasting Service [2016] AICmr 2.
[12] Ibid at [34.4] with reliance on Tribunal and Court decisions: Carver and Fair Work Ombudsman [2011] AlCmr 5; ‘DX’ and National Offshore Petroleum Safety and Environmental Management Authority [2014] AlCmr 132, ‘EH’ and Department of Defence [2015] AlCmr 2; ‘EK’ and Department of Human Services [2015] AlCmr 6.
[13] Ibid at [34.4] with reliance on Tribunal and Court decisions: Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900; ‘HX’ and Australian Federal Police [2016] AICmr 1.
The Respondent submits that evidence given on affidavit from a human resource executive in the Agency (HR Affidavit) outlines the substantial adverse effect that the deponent of that affidavit expects if the relevant material is to be disclosed. The adverse effects outlined are:
(a)increase reluctance among staff to raise concerns or fully engage in human resources processes
(b)undermine the fabric of integrity within the Agency and make it a less desirable place to work
(c)undermine staff confidence in the Agency’s ability to effectively ensure staff safety, and
(d)impair the Agency’s broader staff engagement strategy.[14]
[14] Ibid at [36].
The HR Affidavit explains the critical importance of employees feeling safe, supported and comfortable in providing information without being concerned that the information will be later disclosed or used for any other purpose.[15]
Applicant
[15] HR Affidavit at [27].
Searches
The Applicant submits that the Respondent has not made the effort necessary to obtain the documents requested.[16] They contend that additional searches should be undertaken on briefs, emails etc with relevant staff to obtain the legal advice that is on a lost USB.[17]
[16] HLWM Affidavits at [46].
[17] Applicant’s Statement of Facts, Issues and Contentions (ASFIC) at [32].
Section 47E(C) – Management or assessment of personnel
The Applicant submits that it is incongruous for the Respondent to claim that the disclosure of the material they are seeking would undermine staff confidentiality of investigations and HR processes more broadly in light of ‘non-compliance with the PID Act’s own secrecy and confidentiality requirements’ by the Respondent.[18] The Applicant further submits that staff confidence in ‘HR processes’ has already been undermined by the actions taken against them by the Respondent.[19]
[18] HLWM Affidavits at [34].
[19] Ibid at [35].
The Applicant submits that the management or assessment of personnel by the Respondent would actually benefit from the documents being released to them as it would result in staff becoming aware that mishandling of investigations will no longer be tolerated and give staff confidence to raise complaints and participate in investigative processes like theirs.[20]
[20] ASFIC at [39].
In relation to the public interest, the Applicant submits that it is in the public interest that what happened to them can be fully exposed, particularly in light of ‘revelations of systemic wrongdoing in the APS’ uncovered as part of the Royal Commission into the Robodebt Scheme.[21] They regard that there is a public interest in issues of irregularities and lack of integrity in the management or assessment of personnel being fully available to the public.[22]
[21] Ibid at [41].
[22] Ibid at [43].
The Applicant submits that although they are capable of not jumping to conclusions regarding what is contained in the information that has not been released to them, they consider the release of the remaining few documents ‘will piece things together’.[23]
[23] Ibid at [43].
However, the Applicant’s Affidavit confirms that they are not seeking to obtain parts of any documents that contain medical information about a person.[24]
CONSIDERATION
[24] Ibid at [37].
Searches for documents
The Applicant’s Affidavit refers to ‘additional legal advice’ that they believe the Respondent must have[25] and that there must be further searches possible to identify this legal advice. Reference is also made to the existence of ‘legal advice’ at [32] of the Applicant’s Statement of Facts, Issues and Contentions (ASFIC). It is unclear if this is the same or different legal advice. The Applicant’s Affidavit implies that this ‘additional legal advice’ is on a ‘loose USB’.[26]
[25] HLWM Affidavit at [31].
[26] Ibid at [30].

The Government Lawyer Affidavit sets out the detailed searches that were undertaken by the Respondent. It also explains why certain documents the Applicant contends exist do not exist. [27]
[27]At [51], [56], [60], [61].
Evidence contained in the Government Lawyer’s Supplementary Affidavit is that after being shown the Applicant’s Affidavit and SIFC he undertook additional searches and did not identify any legal advice of the type described by the Applicant.[28]
[28] Supplementary Government Lawyer Affidavit at [12].
In the hearing the Respondent’s counsel raised the issue that if the advice existed would it be relevant to the FOI requests as made by the Applicant. It was said that if the FOI requests as made were not ‘apt’ to pick up the advice then it is not a document that can be in issue, regardless of whether it can be found or not.
It was also contended even if the advice is in issue, there is no evidence before the Tribunal that allows it to conclude that advice as described by the Applicant was provided to the investigator. Further, even if it was, the USB stick no longer contains the information so there is no utility in further searches being conducted.
In the hearing, the Applicant accepted that the USB cannot be found or would probably be overridden even if it could be found. However, the Government Lawyer witness was asked whether the information that was contained on the USB provided to the investigator was contained somewhere else in the Agency’s system, including in parliamentary information management systems and if so, have those systems been searched. The witness confirmed they had.
The requirement in s 24A is a stringent one.[29] In Chu v Telstra Corporation[30] the Court said a person requesting access to a document that has been in the Agency’s possession should only be able to be denied on the s 24A ground when the Agency is satisfied that it has done all that could reasonably be required of it to find the document in question. In that decision the Court found that the Tribunal had failed to appreciate the significance of ‘all’ in the section.[31]
[29] Chu v Telstra Corporation [2005] FCA 1730 at [35].
[30] Ibid.
[31] Ibid at [36].
Recently, the Court said in Patrick v Attorney-General (Cth) that the ‘search must be genuine, in the sense that it is anticipated that something may be found in the places that are searched and that no basis exists to search another place.’[32]
[32] [2024] FCA 268 at [88].
The deponent of the Government Lawyer Affidavit presented as a credible witness before the Tribunal. The deponent outlined the genuine efforts and inquiries he had made to see if such a document existed. At no stage did he attempt to use s 24A of the FOI Act as a ‘refuge’ for any inadequacies he encountered with the Agency’s record keeping or investigative processes.[33] In fact, he showed how, consistent with FOI guidelines he was prepared to take a flexible and common sense approach to the interpretation of the terms of the request being prepared to adjust his search upon new information coming to light.[34]
[33] In Chu v Telstra Corporation [2005] FCA 1730 the Court stated at [35] that ‘section 24A is not meant to be a refuge for the disordered or disorganised’.
[34] FOI Guidelines at [3.89].
The deponent outlines the further inquiries he made to locate the USB after being shown the Applicant’s Affidavit and SIFC. He explains that it was common practice at the Agency for documents relating to a matter to be deleted from the USB when the information had been transferred, as the USB was only used for the transporting of information from the Agency’s systems to an external consultant.[35] He further explains that the USB would have only had copies of documents that were otherwise stored on the Agency’s systems. He explained in response to cross-examination that he searched the seven archive boxes that came back from the investigator thoroughly for a document of the type that has been described by the Applicant. The deponent appeared to appreciate the Applicant’s stated reasons for seeking access to the ‘legal advice’ and displayed a willingness to assist them in their endeavour.
[35] Ibid at [19].
On the basis of the available evidence, I am satisfied that the Respondent has undertaken all reasonable searches necessary to find the documents sought by the Applicant and that no further documents exist or are able to be found.
Operations of the Agency
Section 47E(c) of the FOI Act provides a document is conditionally exempt if its disclosure under the Act would, or could reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.
The FOI Guidelines provide guidance on the meaning of ‘substantial adverse effect’ at [5.20]:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’ [see Re Thies and Department of Aviation [1986] AATA 141 [24]). The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’ [see Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 383].
(Footnotes included)
The Guidelines also provide at [6.103]:
…The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt material (s 26, see Part 3).
I examined all of the documents in order to conclude whether their disclosure would, or could, cause serious or significant concern to a properly concerned reasonable person. I have also examined them in order to conclude whether access to the documents if conditionally exempt would, on balance, be contrary to the public interest.
Documents 1 and 5
Document 1 consists of email exchanges about whether to consult certain staff about request for access to documents made under the FOI Act. Document 5 consists of email exchanges about the effect of an FOI release. Releasing the information in these documents would reveal the identity of staff members.
The Respondent contends that to provide full access to them could reasonably be expected to have a substantial adverse effect on the management or assessment of agency personnel.
The evidence contained in the HR Affidavit is that the disclosure of parts of the documents is likely to seriously undermine Agency staff confidence in the Agency’s ability to effectively live up to its promises to ensure staff safety in the context of personnel management including the Agency’s undertakings of confidentiality.[36] It also states that the reputational damage to the Agency arising from a breach of confidence in relation to personal medical information could also lead to the Agency being considered a less desirable place to work for future employees.[37] It further explains the importance of this in the context of its cohort of employees with lived experience of disability which can mean that in order to provide appropriate accessibility measures confidential medical information needs to be obtained and held by the Agency.[38]
[36] At [7].
[37] At [48].
[38] At [48].
The deponent of the HR Affidavit presented as a credible witness before the Tribunal. The deponent was generous in the assistance she provided to the Tribunal.
I am satisfied that release of this information would have a substantial adverse effect on the management or assessment of personnel by the Respondent as is claimed. The predicted effect of the release of the information is the unwillingness of Agency staff to participate and cooperate with workplace investigations in the future, or if they did participate for them to be guarded about the details they provide because confidentiality and anonymity cannot be assured.
As to the public interest test under s 11A(5) of the FOI Act, I was referred to a number of cases which concluded that it was reasonable to expect that disclosing the details of statements made by particular staff members in the course of investigations of workplace conduct incidents or other personnel processes could make staff reluctant to raise such concerns or affect their willingness to provide evidence and candid information in the future.[39]
[39] ‘EH’ and Department of Defence [2015] AlCmr 2; ‘DX’ and National Offshore Petroleum Safety and Environmental Management Authority [2014] AlCmr 132; Carver and Fair Work Ombudsman [2011] AlCmr 5.
As stated above, the Respondent accepts that there is a public interest in disclosing information that provides a level of assurance that complaints about Agency staff members are appropriately actioned and also in ensuring the scrutiny of the Agency’s management of human resources.[40]
[40] Ibid at [39].
However, the Respondent also submits that interest must be balanced against the public interest of ensuring the Agency’s complaint and investigative functions continue to be effective.[41] The Respondent’s SFIC lists a range of reasons why that public interest is important, including relevantly for these documents:
(a)maintaining confidentiality around the Agency’s human resource processes protects and respects the interest of all persons who participate with the expectation that their privacy will be protected. There is a public interest in honouring expectations of confidentiality.
(b)the ongoing effectiveness and integrity of the Agency’s human resource processes necessarily depends upon staff placing a high degree of trust and confidence in those processes
(c)the critical importance that employees feel safe, supported and comfortable to provide information without being concerned that the information will later be disclosed or used for any other purpose, and
(d)maintaining an effective complaints and investigation process in fact contributes to higher standards of performance and integrity.[42]
[41] Ibid at [40].
[42] Ibid.
The Respondent also submits that the Applicant has already been provided with a significant amount of material in connection with the subject matter of the requests, including the majority of the content of the documents in issue.[43] The Respondent further submits that there is little to no additional public benefit in the disclosure of the portions which remain, when regard is had to the substantial disclosure that has already occurred.[44]
[43] Ibid at [41].
[44] Ibid.
The FOI guidelines explain that the public interest is something that is of serious concern or benefit to the public, not merely of individual interest or something of interest to the public.[45]
[45] FOI Guidelines at [6.224].
Section 11A(5) of the FOI Act requires decision makers to weigh up the relevant factors for and against disclosure and it is only if the factors against disclosure outweigh those for disclosure will the document be exempt.[46]
[46] Ibid at [6.7].
The public interest considerations in favour of disclosure are to provide for accountability and transparency around workplace conduct processes, investigations and disclosures to assure the public that the Agency has appropriate processes in place to handle with these matters and that they are dealt with fairly and impartially. [47]
[47] RSFIC at [38].
The public interest considerations against disclosure are that the disclosure of the documents could undermine and erode confidence in those processes which could have the undesirable consequence of staff being reluctant to raise concerns or become involved in helping to resolve workplace issues.
In terms of weighing up the factors for and against granting disclosure, I give significant weight to the role confidentiality plays in maintaining the integrity of workplace investigative processes and further how those processes can help in promoting and achieving safe workplaces.
I do not accept the Applicant’s argument that favours disclosure because it will make staff aware that the mishandling of investigations will no longer be tolerated. This is just a restatement of the Applicant’s belief that wrongdoing has occurred and that they consider it to be in the public interest for them to be able to access documents they hope may contain evidence of this.
In the hearing, the Applicant referred to the ‘missing piece’ they require to piece together the full picture and expose the full extent of what occurred to them. I find it hard to accept, given the sheer number of documents that have been released to the Applicant, that this information is the ‘missing piece’ they require to continue on their quest.
I have considered other relevant factors favouring disclosure contained in the FOI Guidelines including contributing to the administration of justice for a person; advancing fair treatment of individuals and contributing to the administration of justice generally, including procedural fairness.[48] However, I consider that the Applicant has already been afforded these things in the proceedings before the Tribunal as evidenced by the number of documents that have been released to them since the applications were made in 2020.
[48] At [6.231].
In the hearing the Applicant expressed the frustration that consideration was being given to the health and safety of those named in the documents when at the time of the investigation and throughout the process little regard has been given to ensuring their own health and safety. Likewise, in their Statement of Facts, Issues and Contentions they take issue with the Respondent’s concern regarding the undermining of staff confidentiality and confidence when, in their view, this has already occurred in relation to their case.[49] During their cross-examination of one of the Respondent’s witnesses, the Applicant wanted to know that given the passage of time whether the release of the information would result in any harm to the individuals named in the documents. They appeared only able to contemplate the prospect of harm in the context of the events that led to their applications in the Tribunal and not the broader prospect of harm which concerned the Respondent. Counsel for the Respondent clarified that the concern is the Agency’s processes for managing staff in 2025 and how current Agency staff would be concerned to learn that promises of confidentiality are not capable of withstanding an FOI request and the resultant chilling effect this could have.
[49] ASFIC at [34]-[36].
My observation from the hearing is that sadly these events have certainly taken their toll on the Applicant’s health and wellbeing. I appreciate that the non-disclosure of these remaining pieces of information could cause some distress to the Applicant. However, unfortunately this is not a factor favouring access in the public interest.
I am satisfied that the release of the information in this document would have a substantial adverse effect on the management or assessment of personnel by the Respondent and would not, on balance, be in the public interest to release.
Document 2
Document 2 consists of email exchanges regarding IDs and security passes. For the reasons discussed above in relation to documents 1 and 5, I am satisfied that the release of the information in this document would have a substantial adverse effect on the management or assessment of personnel by the Respondent and would not, on balance, be in the public interest to release. Consequently, the document is exempt from production.
Documents 3, 4 and 6
Document 3 consists of email exchanges about a complaint lodged by the Applicant. Document 4 consists of email exchanges regarding a conduct investigation and document 6 contains email exchanges about a PID investigation.
For the reasons discussed above in relation to documents 1 and 5, I am satisfied that the release of the information in documents 3, 4, and 6 would have a substantial adverse effect on the management or assessment of personnel by the Respondent and would not, on balance, be in the public interest to release. Consequently, the documents are exempt from production.
Documents 7 and 8
Documents 7 and 8 are email exchanges about a PID investigation. During the hearing Counsel for the Respondent referred to these documents as containing a ‘thought bubble’ and early speculation and it would not, on balance, be in the public interest to release. I characterise them a little differently and consider them to be different in nature to the documents I have examined above.
I think the nature of their content requires me to consider the factors that must not be taken into account in deciding whether access would, on balance, be contrary to the public interest. In particular whether:
(e)access to the document could result in any person misinterpreting or misunderstanding the document, and
(f)access to the document could result in confusion or unnecessary debate.[50]
[50] Section 11B(4) of FOI Act.
I think there is a risk that the content in the document could be misinterpreted or cause confusion or unnecessary debate. This is because the communications themselves display that there was confusion amongst Agency officers regarding the interaction of investigative regimes.
I consider the content of these documents to be perfunctory in nature. The exchange of emails appears to be sorting out some confusion that has arisen between PID and APS Code of Conduct investigations. The confusion appears to have arisen due to a requirement in the Public Interest Disclosure Act 2013 (Cth) that existed at the time that required the principal officer to comply with the procedures established under the Public Service Act 1999 (Cth) if the investigation related to an alleged breach of the Code of Conduct. The exchange between officers is trying to clear up confusion about whether that requirement was triggered.
The documents contain general views on an interpretation of the APS Code of Conduct in the context of a disclosure that has been made which contains an allegation of lying. As stated above the sender appears to be attempting to resolve some confusion the other officer had about PID and Code of Conduct investigations. The sender is not stating a view about whether lying had occurred.
This subsection was repealed by the Public Interest Disclosure Amendment (Review) Act 2023 (Cth) as it was considered it would become redundant with the implementation of a provision that excluded personal work-related grievances from the PID Act, unless the authorised officer considers that it relates to systemic wrongdoing; and included a discretion to refer a matter to another legislative process such as a Code of Conduct investigation.[51]
[51] Replacement Explanatory Memorandum to the Public Interest Disclosure Amendment (Review) Bill 2002 At [2.87],
I am not satisfied that the disclosure of these documents would, or could, cause substantial serious or significant concern to a properly concerned reasonable person.[52]
[52] FOI Guidelines at [5.20].
I am not satisfied that the disclosure of these documents would, or could, cause the type of substantial loss or damage that is described in the FOI Guidelines.[53] I accept their release may have an adverse effect, but I do not consider that effect as substantial based on the Respondent’s own characterisation of the content of the document i.e. ‘thought bubble’ and early speculation.
[53] Ibid.
I am not satisfied that the release of the information could significantly erode confidence in the investigative process. That being the case I consider the documents should be disclosed in full.
Documents 9 and 10
Document 9 is an Investigation Report (Report) and document 10 is a matrix of findings and recommendations from the Report. Almost all of the Report has been provided to the Applicant unredacted. The redated portions of the Report are commentary by the Agency’s HR team or the PID investigator about their assessment of personal as well as recommendations of findings concerning particular individuals other than the Applicant.[54]
[54] HR Affidavit at [30].

As the HR Affidavit explains, allegations or suggestions of inappropriate behaviour or breaches of the APS Code of Conduct can cause serious reputational damage and psychological harm for the individuals concerned.[55] It also explains the importance of keeping such allegations or suggestions confidential, particularly if they are not ultimately, or have not yet been, upheld through an investigation process.[56]
[55] Ibid at [32].
[56] Ibid.
The substantial adverse effect provided in evidence to the Tribunal includes: damage to the reputation of the named individuals from the drawing of incorrect conclusions or inferences; the undermining of staff confidence in the confidentiality of investigative processes and in turn the reluctance to participate in such processes and reputation damage to the Agency arising from this kind of breach of confidence which could also lead to the Agency being considered a less desirable place to work for current and future employees.[57]
[57] Ibid at [35].
For these reasons and those discussed above in relation to documents 1 and 5, I am satisfied that the release of the information in documents 9 and 10 would have a substantial adverse effect on the management or assessment of personnel by the Respondent and would not, on balance, be in the public interest to release. Consequently, the documents are exempt from production.
Documents 11, 12 and 13
Documents 11, 12 and 13 are file notes of the investigator of the Report. The material in these documents describes allegations made against individuals in matters that were or were likely to be under investigation by the Agency or the investigator.[58] The documents include records of conversations between the investigator and witnesses.[59]
[58] HR Affidavit at [18].
[59] Ibid.
The HR Affidavit states that the Agency’s ability to effectively conduct workplace investigations depends on staff feeling safe to report and in turn having the confidence that the Agency will manage and investigate matters reported confidentially.[60]
[60] Ibid at [24].
The documents contain information that was provided in confidence. The people who provided the information would have expectations that the information would be kept confidential. This is supported by the extract in the HR Affidavit of the Agency’s Managing Complaints Approach Fact Sheet which states that workplace matters will be treated confidentially to protect the privacy of parties involved and the integrity of any related process.[61]
[61] Ibid at [24.1].
For these reasons and those discussed above in relation to documents 1 and 5, I am satisfied that the release of the information in documents 11, 12 and 13 would have a substantial adverse effect on the management or assessment of personnel by the Respondent and would not, on balance, be in the public interest to release. Consequently, the documents are exempt from production.
Confidentiality
The Applicant has made a submission that this decision is not published because they believe that publishing the reasons for decision will cause further reputational, financial and psychological damage to them and their family. Their concerns were enlivened by a comment by the Respondent’s counsel that it was implausible to think that information from this hearing will not come to be known by staff within the Agency.
The publishing of Tribunal decisions and the reasons for them promotes transparency, public trust and confidence in the Tribunal.[62]
[62] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 at [764].
Section 113 of the ART Act provides that the Tribunal may publish its decisions and the reasons for them and that it must publish certain decisions including decisions which have significant implications for Commonwealth policy or administration.[63] This requirement gives effect to Recommendation 20.4 of the Robodebt Royal Commission Report that the new Tribunal should publish decisions which involve significant conclusions of law or have implications for Commonwealth policy.[64] I consider this mandatory requirement does not apply in relation to this case. However, I note that the Applicant has used the revelations that came to light during that Royal Commission to support their case for disclosure of the documents.
[63] Section 113(2)(ii).
[64] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 at [764].
Section 113 (4) does not authorise the Tribunal to publish information where its disclosure is prohibited or restricted by or under the ART Act. The Tribunal may publish reasons for decisions in proceedings where a non-disclosure order applies, provided they do not include the information covered by the non-disclosure order.
As stated above an order was made to prevent the publication of the name of the Applicant and restrict the disclosure of other information tending to identify the Applicant. The order allocated the pseudonym ‘HLWM’. I have written these reasons in a way that enables the full reasons to be made public while adhering to the order made. I have taken the additional step of using a third-person pronoun to conceal gender identity.
As Tribunal decisions have previously found, the mere apprehension of potential harm from the publication of a Tribunal decision is not a sufficient reason to depart from the norm and supress all or part of the decision.[65] Further, that in order to depart from the norm and the principle of open justice the Tribunal needs to be satisfied there is a real possibility of injustice or serious disadvantage being inflicted upon the person.[66]
[65] Haywood and Comcare (Compensation) [2023] AATA 3360 at [49] and [51].
[66] Ibid.
The Applicant has made many largely unsupported submissions about the perceived leaking of information, lack of confidentiality and vindictiveness displayed by the Agency.[67] Without more probative material and cogent reasoning there are not persuasive or compelling reasons to depart from the principles outlined above.
[67] Applicant’s Submissions on non-publication.
I understand that the Applicant’s career, health and reputation have suffered as a result of the events that led to the making of their applications in the Tribunal. However, I do not consider that the non-publishing of this decision will alleviate these effects or prevent any future adverse effects of a similar kind occurring.
I am far from satisfied there are compelling reasons for the departure from the principle of open justice given it is such a fundamental aspect of the administration of justice, the rule of law and public accountability.
The Applicant’s request for further confidentiality orders under s 70 is refused.

Date of hearing: 7 April 2025 and 22 July 2025

Date final submissions received: 5 August 2025

Applicant: In person

Solicitors for the Respondent: Mr Davidson
Australian Government Solicitor
Exhibits:
R1 – T-Documents
R2 – Affidavit of Government Lawyer 21 October 2024
R3 – Affidavit of Government Lawyer 13 March 2025
R4 – Affidavit of Human Resource Manger 18 October 2024
A1 – Affidavit of Applicant

Date of hearing:	7 April 2025 and 22 July 2025
Date final submissions received:	5 August 2025
Applicant:	In person
Solicitors for the Respondent:	Mr Davidson Australian Government Solicitor