Evolving transparency: Recent trends shaping the application of the Public Interest Test in the FOI Act

Introduction

The Freedom of Information Act 1982 (Cth) (FOI Act) contains conditional exemptions for information in circumstances where disclosure would be contrary to the public interest. The public interest test, which weighs factors for and against disclosure, is therefore a balancing act between promoting transparency and upholding the proper functioning of government. In a period of rapidly increasing applications for reviews by the Information Commissioner, and ever-growing media scrutiny, the public interest test is central to many freedom of information (FOI) matters brought before the Information Commissioner, the Administrative Review Tribunal (Tribunal) and the courts.

Given that the public interest is a flexible concept,¹ this article will highlight recent trends in the interpretation of relevant factors for and against disclosure which are taken into account for the purposes of the public interest test in the FOI Act. These relevant factors are set out in section 11B of the FOI Act, as well as in the FOI Guidelines published by the Office of the Australian Information Commissioner (OAIC).

Factors favouring disclosure

Section 11B(3) of the FOI Act outlines a non-exhaustive list of four factors that favour disclosure for the public interest.

• Promote the objects of the FOI act
• Inform debate on a matter of public importance
• Promote effective oversight of public expenditure
• Allow a person to access his or her own personal information

In Janet Rice and Department of Health and Aged Care (Freedom of Information) [2024] AICmr 41, the Information Commissioner emphasised the importance of transparency in government decision-making. While the Department submitted that disclosure would impede deliberative processes by the Minister’s advisers, the Information Commissioner found that this detriment was unlikely and was outweighed by the benefit to the public interest. The Information Commissioner stressed that public expenditure is “squarely in the public interest”² and that greater weight ought to be given to paragraphs 11B(3)(b) and (c) of the FOI Act. The Information Commissioner held:

Based on my consideration of the nature and context of the particular documents and the parties’ submissions, I am satisfied that the balance of relevant public interest considerations weigh in favour of disclosure. Expenditure of public money is squarely in the public interest. The Senate Estimates process, as an example, goes to the very heart of this. On this basis, I am satisfied that disclosure of the information informs debate on a matter of public importance and promotes effective oversight of public expenditure, and that these public interest factors outweigh the countervailing public interest in protecting the deliberative processes of Ministers’ advisers.

This sentiment was echoed in another recent case, Australian Conservation Foundation and Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2025] AICmr 7. Despite submissions that disclosure may adversely affect the Department’s capacity to receive future grant applications, the Information Commissioner found in favour of disclosure. Given the documents concerned the approval of government funding, the Information Commissioner emphasised that disclosure would promote the effective oversight of public expenditure.

Similarly, in Patrick and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of Information) [2024] ARTA 21, the Tribunal decided that disclosure of governmental meeting minutes was in the public interest for transparency reasons. The Tribunal stated, at [61], that “Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities”. In reaching this conclusion, the Tribunal expressly rejected the Secretary’s submission that disclosure would disincentivise future participation in these meetings.

These three decisions reveal a recent trend in which significant weight is given to promoting public access to documents relating to the allocation of government funding.

Factors against disclosure

Paragraph 6.233 of the FOI Guidelines sets out relevant factors against disclosure. The first of such considerations is whether disclosure “could reasonably be expected to prejudice the protection of an individual’s right to privacy”.³

David Champion and Australian Securities and Investments Commission (Freedom of information) [2024] AICmr 272 concerned the disclosure of documents containing statements of reasons for banning orders made against two individuals. The Information Commissioner considered that disclosure would benefit the public interest by enhancing scrutiny of decision-making and would inform debate on a matter of public importance, being integrity in the provision of financial advice. However, the Information Commissioner concluded that, due to the nature of the documents, disclosure would cause significant harm to the two individuals concerned and would prejudice the protection of their right to privacy. This potential harm to individual privacy was ultimately given greater weight than the benefits of disclosure.

The recent decision of ‘AUI’ and Department of the Prime Minister and Cabinet (Freedom of information) [2025] AICmr 40 echoed a similar sentiment. The documents in this case related to decisions by the Department with respect to its decision to award the Humanitarian Overseas Service Medal to various individuals. On the balance of public interest factors, the Information Commissioner concluded that the potential to prejudice the individuals’ rights to privacy would outweigh factors in favour of disclosure, stating:

I am satisfied that the identities of the individuals are not broadly known, and the individuals have not consented to the disclosure of their personal information, nor would they have expected that their personal information would be publicly disclosed by the Department. Accordingly, I give significant weight to these factors against disclosure.

These two cases highlight the strong emphasis placed on the protection of an individual’s right to privacy as a public interest factor weighing against disclosure. However, the FOI guidelines list a further fifteen public interest factors against disclosure of information, including where disclosure “could reasonably be expected to prejudice security, law enforcement, public health or public safety,”⁴ or “could reasonably be expected to impede the administration of justice for an individual.”⁵

In ‘AHZ’ and the Australian Securities and Investments Commission (No. 2) (Freedom of Information) [2024] AICmr 47, the Information Commissioner found that disclosure may have impeded the flow of information to a regulatory agency and affected the agency’s functions, in accordance with paragraph 6.233(g) of the FOI Guidelines. However, greater weight was placed upon disclosure likely informing the community of government operations and practices and revealing reasons for a government decision. This decision echoes the decision in Janet Rice and highlights the emphasis placed upon public access to government decision-making in determining the public interest, in cases where individual privacy is not concerned.

Conclusion

Applying the public interest test is a balancing exercise and can be challenging. The cases discussed in this article illustrate the latest application of the FOI regime to a range of different documents and circumstances. FOI decision makers will need to closely consider the relevant factors for and against disclosure, in the given circumstances, when deciding whether disclosure would be contrary to the public interest. The decisions referred to in this article may assist with this task.

Thank you to Kate Snashall and Felix Archibald for your contributions to the article.