CB 24 498 Decision on access.pdf

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Our reference: CB 24-498
Mr John Smith
Email by xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Decision on your Freedom of Information Request
I refer to your request of 21 June 2024, to the Classification Board (the Board), seeking access to documents
under the Freedom of Information Act 1982 (FOI Act).
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Your request
You requested access to:
Copies of the following documents:
-
The decision report of the Classification Board for the publication 'Kids' (File number: T24/01405;
Classification number: CLAS-490586); and
-
The decision report of the Classification Board for the publication 'Free' (File number: T24/01407;
Classification number: CLAS-490603).
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Authority to make decision
I am authorised to make decisions in relation to Freedom of Information requests under section 23(1) of the
FOI Act.
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Decision
I have identified two documents that are relevant to your request. These documents were in the possession of
the Board when your request was received.
I have decided to grant partial access to two documents.
A  schedule  setting  out  the  documents  relevant  to  your  request,  with  my  decision  in  relation  to  those
documents, is at ATTACHMENT A.

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Finding of facts and reasons for decision
My findings of fact and reasons for deciding that exemptions apply to the parts of documents relevant to your
request are set out below.
4.1  Section 37 - documents affecting enforcement of law and protection of public safety
Section 37(2)(c) of the FOI Act provides that a document is an exempt document if its disclosure would, or could
reasonably be expected to prejudice the maintenance or enforcement of lawful methods for the protection of
public safety.
Paragraph 5.1116 of the FOI Guidelines states:
5.116
The words ‘public safety’ do not extend beyond safety from violations of the law and breaches
of the peace. The AAT has observed that ‘public safety’ should not be confined to any particular
situation, such as civil emergencies (bushfires, floods and the like) or court cases involving the
enforcement of the law. The  AAT  also noted that considerations of public safety and lawful
methods will be given much wider scope in times of war than in times of peace.
In Re Hocking and Department of Defence [1987] AATA 602 the FOI applicant was denied access to a portion of
an army manual dealing with the tactical response to terrorism and to Army procedures to meet requests for
assistance  in  dealing with terrorism  because  if  the  relevant  section of  the  manual  were made  public,  there
would be a significant risk to the security of the Commonwealth.
In relation to the test would or could reasonably be expected, paragraphs 5.16-5.18 of the FOI Guidelines state:
5.16
The test requires the decision maker to assess the likelihood of the predicted or forecast event,
effect or damage occurring after disclosure of a document.
5.17
The  use  of  the  word  ‘could’  in  this  qualification  is  less  stringent  than  ‘would’,  and  requires
analysis  of  the  reasonable  expectation  rather  than  certainty  of  an  event,  effect  or  damage
occurring.  It  may  be  a  reasonable  expectation  that  an  effect  has  occurred,  is  presently
occurring, or could occur in the future.
5.18
The mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation.
There must, based on reasonable grounds, be at least a real, significant or material possibility
of prejudice.
The Board makes decisions relating to the classification of publications, films and computer games under the
Classification  (Publications,  Films  and  computer  Games)  Act  1995  (the  Classification  Act),  the  National
Classification Code (the Code) and the Guidelines for the Classification of Films and Computer Games 2005 (the
Guidelines).
The Code provides that:
1.
Classification decisions are to give effect, as far as possible, to the following principles:
(a)   adults should be able to read, hear, see and play what they want;
(b)   minors should be protected from material likely to harm or disturb them;
(c)   everyone should be protected from exposure to unsolicited material that they find offensive;
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(d)   the need to take account of community concerns about:
(i)   depictions that condone or incite violence, particularly sexual violence; and
(ii)   the portrayal of persons in a demeaning manner.
The Code also provides that publications that describe, depict, express or otherwise deal with specified matters;
describe  or  depict  in  such a  way  that  they  offend  against  the  standards or morality,  decency  and  propriety
generally  accepted  by  reasonable  adults  to  the  extend  that  they  should  not  be  classified  and  be  Refused
Classification (RC).
Each  state  and  territory  has  classification enforcement  legislation  to  complement  the  Classification  Act  and
provides for offences in relation to the exhibition and sale of RC publications.
The document contains detailed descriptions of the content of publications reviewed for classification purposes
by the Board and reflect the reasons for the Board’s decision to not classify the publications and for them to be
RC.
I am satisfied that disclosure of the parts of the documents marked ‘s37(2)(c)’ would, or could reasonably be
expected to, prejudice the maintenance or enforcement of lawful methods for the protection of public safety.
I  am  further  satisfied  that  disclosure  of  this  information  would  result  in  real,  significant  or  the  material
possibility of prejudice to the protection of maintenance or enforcement of lawful methods for the protection
of public safety.
For the reasons outlined above, I decided that the parts of the documents marked ‘s37(2)(c)’ are exempt from
disclosure under section 37 of the FOI Act.
4.2  Section 47E - Documents affecting certain operations of agencies
Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure would, or could
reasonably  be  expected  to,  have  a  substantial  adverse  effect  on  the  proper  and  efficient  conduct  of  the
operations of an agency.
Paragraph 6.120 of the FOI Guidelines states:
An  agency’s  operations  may  not  be  substantially  adversely  affected  if  the  disclosure  would,  or  could
reasonably be expected to lead to a change in the agency’s processes that would enable those processes
to be more efficient. For example, in Re Scholes and Australian Federal Police [1996] AATA 347, the AAT
found that the disclosure of particular documents could enhance the efficiency of the Australian Federal
Police as it could lead to an improvement of its investigation process.
Paragraph 6.123 of the FOI Guidelines states that the predicted effect must bear on the agency’s ‘proper and
efficient’ operations, that is, the agency is undertaking its expected activities in an expected manner. Where
disclosure  of  the  documents  reveals  unlawful  activities  or  inefficiencies,  this  element  of  the  conditional
exemption will not be met and the conditional exemption will not apply.
As outlined above, the Board is responsible for assessing and making decisions relating to the classification of
publications, films and computer games under the Classification Act.  Disclosure of the descriptive content of a
publication that depicts, expresses or otherwise deals with matters specified in the Code; and/or describes or
depicts  film  content  in  a  way  that  is  likely  to  cause  offence  to  a  reasonable  adult;  or  promotes,  incites  or
instructs in matters of crime of violence, would disclose information that the Board has decided should not be
classified  under  the  Classification  Act  and  should  be  Refused  Classification  (RC).  The  disclosure  of  that
descriptive content would subvert the classification process by revealing content likely to offend against the
standards or morality, decency and propriety generally accepted by reasonable adults.
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I am satisfied that the parts of the documents marked ‘s47E(d)’ contain information which, if disclosed, would
or could reasonably be expected to, have a substantial and an unreasonable effect on the Board’s proper and
efficient  operations.  These  are  operational  activities  that  are  being  undertaken  in  an  expected  and  lawful
manner, and would not reveal inefficiencies in the way in which the Board conducts those operational activities.
For the reasons outlined above, I decided that parts of the documents marked ‘s47E’ are conditionally exempt
from disclosure under section 47E of the FOI Act.
Where information is found to be conditionally exempt, I must give access to that information unless access at
this  time  would,  on  balance,  be  contrary  to  the  public  interest.  I  have  addressed  the  public  interest
considerations below.
4.3  Public interest considerations
Pursuant to section 11A(5) of the FOI Act, I must give access to conditionally exempt information unless access
to  that  information  at  that  time  would,  on  balance,  be  contrary  to  the  public  interest.  I  have  therefore
considered whether disclosure of the conditionally exempt information would be contrary to the public interest.
I note that paragraph 6.5 of the FOI Guidelines states that the public interest test is considered to be:
•  something that is of serious concern or benefit to the public, not merely of individual interest
•  not something of interest to the public, but in the interest of the public
•  not a static concept, where it lies in a particular matter will often depend on a balancing of interests
•  necessarily broad and non-specific and
•  relates  to matters of common concern or relevance to all members of the public, or a substantial
section of the public.
Factors favouring disclosure
Section 11B of the FOI Act provides that factors favouring access to  conditionally exempt information in the
public interest include whether access to that information would do any of the following:
•  promote the objects of the FOI Act (including all matters set out in sections 3 and 3A)
•  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.
Having regard to the above, I consider that disclosure of the conditionally exempt information at this time:
•  would provide access to documents held by an agency of the Commonwealth which would promote
the objects of the FOI Act by providing the Australian community with access to information held by
the Australian Government.
•  would not inform debate on a matter of public importance
•  would not promote effective oversight of public expenditure
•  would not allow you access to your own personal information.
Factors weighing against disclosure
I consider that the following factors weigh against disclosure of the conditionally exempt information at this
time, on the basis that disclosure:
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•  could reasonably be expected to prejudice security, law enforcement, public health or public safety
•  could reasonably be expected to prejudice the Board’s responsibilities relating to the assessment of
publications,  films  and  computer  games  under  the  Classification  Act,  with  disclosure  of  the
conditionally exempt material undermining the decision made to refuse classification to the film
•  would subvert the purpose for which this film was refused classification by revealing content likely to
cause offence to a reasonable adult; or promote, incite or instruct in matters of crimes of violence
In making my decision, I have not taken into account any of the irrelevant factors set out in section 11B(4) of
the FOI Act, which are:
(a)
access  to  the  conditionally  exempt  information  could  result  in  embarrassment  to  the
Commonwealth Government, or cause a loss of confidence in the Commonwealth Government
(b)
access  to  the  conditionally  exempt  information  could  result  in  any  person  misinterpreting  or
misunderstanding that information
(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 conditionally exempt information could result in confusion or unnecessary debate.
Conclusion – disclosure is not in the public interest
For the reasons set out above, after weighing all public interest factors for and against disclosure, I decided
that, on balance, disclosure of the conditionally exempt information would be contrary to the public interest. I
am satisfied that the benefit to the public resulting from disclosure of the conditionally exempt information is
outweighed by the benefit to the public of withholding that information.
4.4  Section 22 – deletion of irrelevant and exempt material
Section 22 of the FOI Act applies to documents containing irrelevant material and allows an agency to delete
such material from a document.
I decided that the documents captured by your request contain material which can reasonably be regarded as
irrelevant to your request. The documents contain personal identifiers of public servants. When your request
was acknowledged, we notified you that personal information of public servants below the SES level and all
email addresses, signatures and direct telephone numbers would be considered irrelevant to the scope of your
request unless you told us that you were expressly seeking access to that information. On the basis that you did
not notify us otherwise, I decided this information is irrelevant to your request. As such, an edited copy of those
documents has been prepared in accordance with section 22(1)(a)(ii) of the FOI Act. This information is marked
‘s22’ in the documents released to you.
In addition, as I decided that some information contained within the documents is exempt from disclosure, I
have  prepared an edited copy of the  documents  being released to you by deleting the exempt  information
under section 22(1)(a)(i) of the FOI Act.
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Material taken into consideration
In making my decision, I had regard to the following:
•  the terms of your request
•  the content of the documents captured by your request
•  the provisions of the FOI Act
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•  the guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the FOI Guidelines)
•  the provisions of the Classification (Publications, Films and computer Games) Act 1995
•  the provisions of the  National Classification Code
•  advice from officers with responsibility for the subject matter contained in the documents captured
by your request
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Legislative provisions
The  FOI  Act,  including  the  provisions  referred  to  in  my  decision,  are  available  on  the  Federal  Register  of
Legislation website: www.legislation.gov.au/Series/C2004A02562.
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Your review rights
If you are dissatisfied with my decision, you may apply for a review of it.
7.1  Information Commissioner review or complaint
An application for IC review must be made in writing to the Office of the Australian Information Commissioner
(OAIC) within 60 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge a complaint with the
OAIC. However, the OAIC suggests that complaints are made to the agency in the first instance.
More information about the Information Commissioner reviews and complaints is available on the OAIC website
here: www.oaic.gov.au/freedom-of-information/foi-review-process.
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Publication of material released under the FOI Act
Where I have decided to release documents to you, we may also publish the released material on our Disclosure
Log. We will not publish personal or business affairs information where it would be unreasonable to do so.
For  your  reference  our  Disclosure  Log  can  be  found  here:  www.infrastructure.gov.au/about-us/freedom-
information/freedom-information-disclosure-log.
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Further information
The Department of Infrastructure, Transport, Regional Development, Communications and the Arts provides
administrative assistance to the Classification Board in relation to FOI matters.
If  you  require  further  information  regarding  this  decision,  please  contact  the  Department’s  FOI  Section
at xxx@xxxxxxxxxxxxxx.xxx.xx.
Yours sincerely

Tristan Sharp
A/g Director
Classification Board

16 July 2024

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ATTACHMENT A.
SCHEDULE OF DOCUMENTS CB 24-498
Doc  Date of
Description of document
Num of
Decision on access
Provision
No.  document
Pages
of FOI
Act
1.
1  3/05/2024
Classification Board Report for
5
Partial access granted
s22
publication title ‘Kids’

s37
s47
2.
1  3/05/2024
Board Report for publication title
5
Partial access granted
s22
‘Free’

s37
s47

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