23 Marcus Clarke Street
Canberra ACT 2601
GPO Box 3131
Our ref:
PRJ1008011
Canberra ACT 2601
Contact officer:
FOI Team
Contact phone:
02 6243 1244
tel: (02) 6243 1111
fax: (02) 6243 1199
17 April 2025
www.accc.gov.au
Mr Andrew Smith
Sent via email to: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Andrew
Decision on freedom of information request
I refer to your email dated 26 March 2025
in which you request access, under the
Freedom of Information Act 1982 (Cth) (the Act), to:
‘* An audio-visual recording of the whole of each public hearing conducted as part of the
Supermarkets Inquiry 2024-2025, excluding any portion where evidence was taken in
private.’
Decision
I have decided to refuse to release these recordings to you. Detailed reasons are set
out in Attachment A. Your review rights are set out in Attachment B.
I am authorised under s.23 of the Act to make this decision.
Charges
Under the Act the first 5 hours ($100.00) of processing your request are free. As the
cost of processing your request is less than $100.00, there are no charges for
processing your request.
Yours sincerely
Julie Chandler
Principal Lawyer
Specialist Advice and Services Division
Sent by email 17/04/2025
Attachment A
Findings on material questions of fact
Section 47F – Recordings affecting personal privacy
Audio-visual recordings: all
The audio-visual recordings of public hearings conducted as part of the ACCC’s Supermarkets Inquiry
2024-2025 (the Recordings) contain personal information. Section 47F conditional y exempts a
‘document’ (defined broadly in s.4(1) of the FOI Act to capture audio-visual recordings, see para
(a)(iv)) to the extent that its disclosure would involve the unreasonable disclosure of personal
information about any person (including a deceased person).
Personal information
Section 4(1) of the FOI Act defines ‘personal information’ as including information about an individual
whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Personal information can include a person’s name, address, telephone number1, date of birth, medical
records, bank account details, taxation information2 and signature3.
I am satisfied that the Recordings contain personal information about individuals who appeared at the
public hearings because the relevant information is about individuals whose identity is apparent from
the Recordings.
Disclosure unreasonable
If information is considered personal information, it wil be conditional y exempt if disclosure would be
‘unreasonable’. In determining whether disclosure would be unreasonable, I have considered the
fol owing factors:
the objects of the FOI Act (section 3), which include an intention that functions and powers are
to be exercised as far as possible to facilitate and promote public access to information
promptly and at the lowest reasonable cost;
the extent to which the information is wel known;
the availability of the information from publicly accessible sources;4
the fact that any recordings made by members of the public, during the livestreaming of the
public hearings, were made unlawful y, and
the real risk that the personal information contained in the Recordings would be misused by
criminals and others if it was made available to the public on a permanent basis fol owing the
conclusion of the hearings (e.g. their voices could be more easily impersonated, their voices
and images could be more easily manipulated and other personal information such as their
physical characteristics could aid criminals, such as scammers, to impersonate individuals who
appeared in the Recordings).
I am satisfied from the nature of the information and my own enquiries that some, if not al , of the
personal information in question would not be wel known or publicly available. On that basis, I have
concluded that disclosure of the information would be unreasonable.
I find that the Recordings are conditional y exempt in part under section 47F of the FOI Act.
1 See Re Green and Australian and Overseas Telecommunications Corporation [1992] AATA 252.
2 See Re Murtagh and Commissioner of Taxation [1984] AATA 249 and Re Jones and Commissioner of Taxation
[2008] AATA 834.
3 See Re Corkin and Department of Immigration & Ethnic Affairs [1984] AATA 448.
4 See Re Jones and Federal Commissioner of Taxation [2008] AATA 413.
The public interest
Section 11A(5) provides that where a document is conditional y exempt, access to the document must
be given, unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest. In balancing the public interest in this case, I have considered the
fol owing factors for and against disclosure:
Factors in favour of disclosure, as set out in section 11B(3) of the FOI Act:
promoting the objects of the Act, particularly in increasing scrutiny, discussion, comment and
review of the Government's activities (section 3(2)(b) of the FOI Act)
facilitating access to information to members of the public that al ows them to be satisfied that
proper processes have been fol owed by the ACCC.
Factors against disclosure:
preserving reasonably held expectations of confidentiality
o The ACCC told persons appearing at the public hearings, in writing and oral y, that a
transcript of the hearings would be made publicly available once the hearings
concluded (not a recording). For example, the ACCC said in the General Practice Note
for Conduct of Hearings:
Al hearings wil be recorded and transcribed by third party transcript providers
engaged under the Act to assist in the conduct of the inquiry. No other
recordings of the hearings wil be permitted.
Transcripts of public hearings wil be published on the ACCC’s website. Any
evidence taken in private during a public hearing wil be clearly identified on the
hearing transcript and redacted from any transcripts publicly released.
protecting individuals from unreasonable interferences with their privacy
o The ACCC decided not to make the Recordings available after the hearings to mitigate
the risk of persons creating false records or defamatory material from the Recordings
o The ACCC and its National Anti-Scam Centre are wel -placed to assess the very real
risk that personal information made available to the public and/or published on the dark
web wil be used by criminals to ‘scam’ numerous individuals, causing them
considerable financial and emotional harm
the principle of access to justice is not absolute
o While legal proceedings are general y open to the public, their ability to record hearings
and access transcripts and recordings are often restricted (e.g. the court’s permission
may be required to search for a transcript), although practices can vary between courts
and the type of proceedings in question, and the court’s approach may vary depending
on the identity of the person seeking access, the type of document they are seeking to
access and/or correct, and the reason for their request. I consider similar
considerations apply to the hearings and access to the Recordings.
In weighing these factors, I have taken account of the importance of providing transparency via
access to information, but I have given more weight to the importance of preventing unreasonable
intrusions into personal privacy and in particular, reducing the real risk that the relevant personal
information would be misused by criminals if the Recordings were made public on a permanent basis.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI Act,
such as seniority of the author, misinterpretation or misunderstanding of the document, or confusion or
unnecessary debate resulting from disclosure of the document.
On balance, I have concluded that disclosure of the personal information contained in the Recordings
would be unreasonable. There is minimal public interest in this information being known. By contrast,
the interference with the privacy of individuals is in my view significant. I am satisfied that the
Recordings contain significant personal information (relating to persons outside of the ACCC) which
could be misused by criminals and no material public purpose would be achieved by release
(including because the relevant hearings and the ACCC’s Supermarkets Inquiry finished months ago).
Taking into account the above matters, on balance, I consider that disclosure of the information in the
Recordings is contrary to the public interest. Accordingly, I have decided that the Recordings are
exempt in ful under section 47F of the FOI Act.
Attachment B
Information on rights of review
ACCC Internal Review
Under s.54 of the FOI Act, you can ask for an internal review of this decision. If you request
an internal review request, another officer of the ACCC wil review your request and make a
new decision.
Timeframe for requesting internal review
You have 30 days from the receipt of this decision to request an internal review.
You may seek an extension to this timeframe with our agreement.
Is there a charge?
There is no charge payable for requesting an internal review.
Requesting an internal review
Your request for internal review must be in writing and indicate that you are seeking an
internal review. You wil need explain why this decision should be changed.
Please send your internal review request to the FOI Team by:
Email: xxx@xxxx.xxx.xx
When wil the decision be made?
We have 30 days from the receipt of your internal review request to make a decision.
If we do not make a decision within 30 days or such further period as the IC allows, the
original decision is considered affirmed. In such circumstances, you can seek review of our
deemed decision by the Information Commissioner.
Review by the Information Commissioner
You can ask for a review of this decision by the Australian Information Commissioner (IC).
The Office of the Australian Information Commissioner (OAIC) encourages applicants to
seek internal review first, however you are not required to go through our internal review
process before seeking review by the IC. If you do choose to seek an internal review, you
can stil seek IC review of the internal review decision if we refuse access to your request.
Timeframe for requesting IC review
You have 60 days from the receipt of an access refusal decision to request IC review.
You may seek an extension to this timeframe from the OAIC.
Is there a charge?
There is no charge payable for requesting an IC review.
Requesting IC review
Your request for IC review must be in writing and include:
• your name and contact details
• a copy of the ACCC’s decision that you disagree with (if you’ve received one)
• the reason(s) why you disagree with the decision
You can lodge your request for IC review online:
Online: https:/ www.oaic.gov.au/contact-us#reviews
Complaint to the Information Commissioner
You can request the Information Commissioner to investigate action taken by the ACCC in
relation to this FOI request. The Information Commissioner wil consider your complaint and,
if appropriate, conduct an investigation. Any investigation wil be completely independent.
Is there a charge?
There is no charge payable for making a complaint to the IC.
Lodging an IC complaint
You must lodge your complaint in writing and give a clear and brief description of each issue
you’re complaining about and what outcome you’d like.
You can lodge a complaint online:
Online: https:/ www.oaic.gov.au/contact-us#complaints
Document Outline
