On 3 February 2025, the Full Federal Court (Wigney, Thawley and McDonald JJ) delivered judgment in Bachelard v Australian Federal Police [2025] FCAFC 5. The case concerned a freedom of information (FOI) request made by Mr Michael Bachelard, a journalist from The Age newspaper, to the Australian Federal Police (AFP). The Full Federal Court found that the Administrative Appeals Tribunal, as it then was (Tribunal), erred in law in affirming a decision made by the AFP under the Freedom of Information Act 1982 (Cth) (FOI Act).

The Full Federal Court judgment provides useful guidance on the operation of the FOI Act, and in particular, ss 37(1)(b), 47F, 11A(5) and 22(1) of the FOI Act.

A summary of the judgment is set out below, but first, here are the top five key takeaways, particularly for FOI practitioners and decision-makers:

• The exemption under s 37(1)(b) of the FOI Act is concerned with the protection of informers, not with mere reluctant witnesses who would prefer to remain anonymous until they were required to give evidence.
• In determining whether a person is a 'confidential source of information' under s 37(1)(b) of the FOI Act, the focus is on whether the person provided the information under an express or implied assurance or undertaking that their identity would remain confidential, or at least, an understanding from the circumstances in which the information was provided that the recipient would not disclose their identity.
• In determining whether the disclosure of personal information would be 'unreasonable' under s 47F of the FOI Act, it is necessary to consider whether there is any public interest in the release of the information. Promoting transparency and accountability of government agencies and public officers are relevant public interests.
• Similarly, in determining whether the disclosure of information would be 'contrary to the public interest' under s 11A(5) of the FOI Act, it is necessary to consider whether there is any public interest in the release of the information. As above, promoting transparency and accountability of government agencies and public officers are relevant public interests.
• An agency should generally not assume that an FOI applicant would not wish to receive an edited copy of a document under s 22(1) of the FOI Act, even if the document is heavily redacted. The objects of the FOI Act are promoted by the provision of documents to the greatest extent possible.

What is the background to the Bachelard v Australian Federal Police [2025] FCAFC 5 case

This case concerned an FOI request made by Mr Bachelard for witness statements and a report concerning an investigation relating to the conduct of a former AFP Commissioner, Mr Mick Keelty.

The AFP identified four documents to be relevant to the FOI request – comprising three witness statements (Statements) and a professional standards report (Report) (collectively, Documents) – and refused access to the Documents in full. This decision was affirmed on internal review, and subsequently, by the Tribunal. The Tribunal held that the Documents were exempt under ss 37(1)(b), 47E(c) and (d), and 47F of the FOI Act. Mr Bachelard then appealed to the Full Federal Court.

The Full Federal Court allowed the appeal.

Confidential sources exemption (s 37(1)(b) of FOI Act)

Section 37(1)(b) of the FOI Act relevantly provides that a document is exempt if its disclosure would, or could reasonably be expected to, disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law. Mr Bachelard contended that the Tribunal had misconstrued s 37(1)(b) of the FOI Act.

The Full Federal Court (McDonald J, with whom Wigney and Thawley JJ agreed) upheld this ground of appeal, finding that the Tribunal had relied heavily upon – and misunderstood – s 60A of the Australian Federal Police Act 1979 (Cth), in finding that the providers of the Statements were 'confidential sources'. The Full Federal Court held that this error of law materially affected the Tribunal's decision.

In a separate judgment, Wigney J (with which McDonald J agreed) made the following observations about the exemption under s 37(1)(b) of the FOI Act:

• The exemption is concerned with the protection of informers, not with 'mere reluctant witnesses who would prefer to remain anonymous until they were required to give evidence' (Judgment, [15]).
• The exemption affords protection in respect of information that would reveal the identity of the confidential source of information, not in respect of the information provided by the source.
• In determining whether a person is a 'confidential source of information', the focus is on the position of the informer – and in particular, whether they provided the information under an express or implied assurance or undertaking that their identity would remain confidential, or at least, an understanding from the circumstances in which the information was provided that the recipient would not disclose their identity.

In a separate judgment, Thawley J similarly held that the critical question under s 37(1)(b) of the FOI Act is whether the person who supplied the information did so on the basis that the recipient of the information was obliged to keep the person's identity confidential. His Honour held that the obligation to maintain confidentiality may be express or implied,  and may be inferred from the nature and content of the document and the circumstances in which the information was supplied.

Unreasonable disclosure of personal information (s 47F of FOI Act) and public interest test (s 11A(5) of FOI Act)

Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure would involve the 'unreasonable' disclosure of personal information about any person. Access must be given to a conditionally exempt document unless such access would, on balance, be 'contrary to the public interest' (FOI Act, s 11A(5)).

The Tribunal found that the Documents contained conditionally exempt matter under s 47F of the FOI Act. In reaching this view, the Tribunal reasoned that '[n]o public purpose would be achieved through release of the information'.

The Full Federal Court held that it was not open to the Tribunal to find that '[n]o public purpose' would be achieved through release of the information in the Documents. This was because:

• The objects of the FOI Act recognise that 'the promotion of scrutiny, discussion, comment and review of the activities of the Commonwealth government and its agencies, and the conduct of those performing functions on their behalf, is a public purpose' (Judgment, [232]). The Full Court held that the disclosure of information about governmental activities and conduct serves that public purpose.
• The 'personal information' in the Documents was not information relating to individuals' private conduct, but the conduct of AFP appointees in relation to an official investigation conducted under the AFP Act. Release of the Documents would serve the public interests in transparency and accountability of government agencies and public officers.

The Full Federal Court found that the Tribunal's conclusion that '[n]o public purpose would be achieved through release of the information' must have also affected the Tribunal's assessment of the public interest test under s 11A(5) of the FOI Act, such that the Tribunal's decision under s 11A(5) was also affected by error.

Exemptions not relied upon by the AFP (ss 47E(c) and (d) of FOI Act)

The Tribunal found that the Statements were exempt under ss 47E(c) and (d) of the FOI Act, in circumstances where the AFP had not relied upon either of these exemptions before the Tribunal.

The Full Federal Court held:

• The Tribunal had denied Mr Bachelard procedural fairness, by deciding that the Statements were exempt under ss 47E(c) and (d) of the FOI Act, in circumstances where the AFP had not relied upon these exemptions before the Tribunal, and Mr Bachelard was not put on notice that those exemptions were in issue.
• The denial of procedural fairness was material. If Mr Bachelard had been put on notice that ss 47E(c) and (d) of the FOI Act were in issue, he might have addressed the issue by way of further evidence or submissions.

Preparing an edited copy of documents (s 22(1) of FOI Act)

Section 22(1) of the FOI Act provides that, if it is possible and reasonably practicable for an edited copy of a document to be prepared – i.e. a copy of the document which is modified by deletions of exempt or irrelevant matter – the FOI applicant must be given access to the edited copy of the document, unless it is apparent that the FOI applicant would decline access to the edited copy.

Deletions of exempt matter

The Full Federal Court held that the Tribunal erred in:

• failing to consider whether an edited copy of the Report could be provided without revealing exempt matter under s 37(1)(b) of the FOI Act;
• finding that it was not possible to produce an edited copy of the Statements without revealing exempt matter under s 37(1)(b) of the FOI Act. The Full Federal Court observed that '[d]isclosure of even a heavily redacted version of each of the Statements might well have been of interest to Mr Bachelard' (Judgment, [178]); and
• failing to consider whether an edited copy of the Report and Statements could be provided without revealing exempt matter under ss 47E(c) and (d) of the FOI Act.

Deletions of irrelevant matter

The Full Federal Court held that the Tribunal erred in:

• misconstruing the scope of the FOI request (i.e. by taking a narrow view of the FOI request); and
• finding that significant parts of the Report were irrelevant to the FOI request.

General observations

The Full Federal Court also made a number of general observations about s 22(1) of the FOI Act, including the following:

• Agencies generally should not assume that an FOI applicant would not wish to receive an edited copy of a document if they determine that access should not be provided to the document in full – even if the document is heavily edited. The objects of the FOI Act are promoted by the provision of documents to the greatest extent possible.
• The disclosure of an edited copy of a document, which makes clear which parts of the document contain exempt matter and which parts do not, will generally provide a greater degree of transparency about the operation of the FOI Act.

The Full Federal Court set aside the Tribunal's decision and ordered that the matter be remitted to the Administrative Review Tribunal to be determined in accordance with the law. Access a copy of the Full Court's decision.

This Full Federal Court judgment provides some useful and practical guidance to Commonwealth Government agencies in managing their FOI caseload.

The MinterEllison Public Law team is available to discuss your questions about managing and processing requests for access under the FOI Act.