Recent Cases: Commonwealth

Fernandes and Director- General, National Archives  of Australia  [2020] AATA 128

Dr Fernandes ("applicant") applied to the National Archives ("respondent") seeking access to records relating to Australian Secret Intelligence Service ("ASIS") presence and operations in Cambodia 1965-1970.

A delegate of the respondent decided that he neither confirmed nor denied the existence of these records.  Further, assuming the existence of the record, claimed it would be an exempt record under 33(1)(a), (b) or (e) of the Archives Act 1983 (Cth) ("Archives Act").

This case is relevant to FOI officers because of the similarity with s 25(1) of the Freedom of Information Act 1982 (Cth) ("FOI Act")

Issue

The  main issue was whether disclosure of information as to the existence or non-existence of the requested records in a Commonwealth record would cause that Commonwealth record to be an exempt record such as to entitle a response neither confirming nor denying the existence of documents. 

The Tribunal considered earlier FOI related cases and confirmed that the provisions do not, by their terms, require the relevant agency to in fact determine that the requested documents, if they exist, would be exempt under those provisions.   Rather it is enough that a response confirming or denying the existence of the requested documents would itself be exempt under those provisions,

The applicant argued that because there was a substantial amount of material already available on the public record, the position neither confirming nor denying could not be sustained.

The Director-General of ASIS provided evidence (including in a closed session) that unofficial speculation of whether or not there are documents is different to official confirmation whether or not there were documents.  The latter would enable inferences to be drawn which could cause damage to security, defence or international relations.

Held

The Tribunal held that the respondent was entitled to give the notice that he did and accordingly affirmed the decision to neither confirm nor deny.  It accepted that if information as to the existence or non-existence of the requested documents was contained in a document, the record itself would be an exempt document.