Case Note: Ryan v Secretary, Department of Home Affairs [2025] ARTA 101

The Tribunal’s decision: On 17 February 2025, the new Administrative Review Tribunal (Tribunal) delivered its second freedom of information (FOI) decision.  

Deputy President Britten-Jones set aside the Freedom of Information Commissioner’s decision dated 13 March 2024 and substituted a decision that pre-screening questions were exempt from disclosure under s 33(a)(i) of the Freedom of Information Act 1982 (Cth) (FOI Act). 

The Tribunal also briefly considered s 47E(d) of the FOI Act, finding that the material in question was also conditionally exempt, and that access would be contrary to the public interest.  

Takeaway for other agencies: the Tribunal appears to have given significant weight to the evidence of the departmental witness, Rear Admiral Sonter, who was described by the Tribunal as  

‘a senior and highly experienced member of the Australian Defence Force and his views on the likely impact of disclosure of the Pre-screening Questions should be given appropriate weight.’  

This is a good reminder for agencies of presenting evidence from experienced senior officials to support their claims for exemption. 

Other considerations: The Tribunal also cited the matter of Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537 at [33]- [36] where Perry J provided the following helpful commentary on the application of s 33(a) and (b) of the FOI Act: 

[33] First, as the Full Court held in Commonwealth v Hittich [1994] FCA 1324; (1994) 53 FCR 152 at 154, s 33(a)(iii) (then s 33(1)(a)(iii)) “does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not”... Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant... 

[34] Secondly, the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated... 

Background:  

The parts of the documents in dispute in this matter comprised ‘seven very short questions found within each of 15 records of interview conducted with Vietnamese nationals who were intercepted at sea and taken to Christmas Island in 2018,’ referred to by the Tribunal as the pre-screening questions.