Recent Cases: Commonwealth

'AMA' and Australian Securities and Investments Commission (Freedom of information) [2024] AICmr 149 (26 July 2024)

Facts 

‘AMA’ (“applicant”) applied to the Australian Securities and Investments Commission (“respondent”) for access to documents.  The respondent refused access to the documents on the basis that a practical refusal reason existed under s 24AA(1)(b), as the sought documents could not be identified from the request. The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review. 

Reasoning

Whether a practical refusal reason existed – s 24

The Commissioner was satisfied that the respondent’s request consultation process was sufficient for the purposes of s 24(1)(a) of the FOI Act, as it had properly notified the applicant of the request consultation process in accordance with s 24AB(2), and had taken the reasonable steps to assist the applicant in revising the request.  The Commissioner accepted the respondent’s evidence of the request consultation process showing that the respondent had provided information in the consultation notice to assist applicant in clarifying the request, as well as sending a further email to the applicant and providing further assistance to revise the request.  Therefore, the Commissioner was satisfied that the request consultation process undertaken by the respondent met the requirements in s 24AB of the FOI Act. 

Based on a review of the correspondence between the applicant and the respondent in the consultation process, the Commissioner found that the applicant had not provided the respondent with any information that would have assisted it in identifying the sought documents.  Further, the applicant’s submissions to the Commissioner were not accepted, as they did not clarify which documents were sought, nor how the correspondence in the consultation period assisted the respondent in identifying the documents.  Therefore, the requirements of s 15(2)(b) of the FOI Act had not been met. 

Decision

The Commissioner affirmed the respondent’s decision in finding that a practical refusal reason did exist under s 24AA(1)(b) of the FOI Act.

Patrick and Director-General, Australian Submarine Agency (Freedom of information) [2024] AATA 2411 (12 July 2024)

Facts 

Mr. Rex Patrick (“applicant”) applied to the Director-General of the Australian Submarine Agency (“Agency”) for access to documents prepared by the Nuclear-Powered Submarine Taskforce.  The agency released documents 4, 5 and 6 in part, and refused access in full to the remaining document, document 2.  The Agency relied on the exemptions under ss 33(a)(i), 33(a)(ii), 33(a)(iii) and 33(b) of the FOI Act. 

Reasoning 

Documents affecting national security, defence or international relations – s 33

Document 2

The Tribunal found that the document contained sensitive information in which the relevant parties, the Australian, United Kingdom and United States Partners (“AUKUS Partners”) would have expected remain confidential.  A breach of this expectation of confidentiality would have been detrimental to the relationship between the AUKUS Partners, as it would have resulted in a loss of trust which may have inhibited the flow of confidential information in the future.  This loss of trust would have damaged the security and defence of the Commonwealth, as the relationship between the AUKUS Partners is critical to its security and defence.  The Tribunal noted that this damage fell within the meaning of ‘damage’ under s 33(a) of the FOI Act. 

The Tribunal gave great weight to the Agency’s evidence that highlighted the potential prejudicial effect on the Commonwealth, the potential damage to relationship between the Commonwealth and the AUKUS Partners, as well as the counterproductive and undermining effects that disclosure would have had.  The Tribunal did not accept the applicant’s submission that the government could not enter into a confidentiality agreement that affected an individual’s rights under the FOI Act.  As highlighted by the Tribunal, the applicant’s interpretation of s 33 of the FOI Act was incorrect. 

The Tribunal affirmed that the documents were variously exempt under ss 33(a)(i) and 33(a)(ii), as disclosure would have had a negative impact on Australia’s relationship with the AUKUS Partners, which could have reasonably been expected to cause damage to the security of the Commonwealth.  Section 33(b) applied, as the document contained information communicated in confidence by the US and UK governments or their authorities.  Sections 33(a)(ii) and 33(a)(iii) applied, as release of the information could have reasonably been expected to cause damage to the international relations of the Commonwealth, which would have affected the defence of the Commonwealth. 

Decision

The Tribunal affirmed the Agency’s decision. Document 2 was exempt in full and documents 4, 5 and 6 were partially exempt under s 33 of the FOI Act.