Paul Farrell and Department of Home

Affairs [2018] AICmr 27 (28 February

2018)
Decision and reasons for decision of
Australian Information Commissioner, Timothy Pilgrim

Applicant: Paul Farrell

Respondent: Department of Home Affairs

Decision date: 28 February 2018

Application number: MR17/00380

Catchwords: Freedom of Information — Information as to the existence of certain

documents — Documents affecting enforcement of law — (Cth)
Freedom of Information Act 1982 ss 25, 37(1) and 55D

Decision
1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the
Department of Home Affairs (Department) of 13 July 2017.1 I substitute my decision that if documents
were to exist, they would not be exempt.

Scope of IC review
2. On 30 May 2017, Mr Paul Farrell (the applicant) applied to the Department for access to:

All disclosures made under s 19 of the Australian Border Force Act 2015.2

1 The FOI request that is the subject of this review was made to the Department of Immigration and Border Protection. On 20
December 2017, pursuant to machinery of government changes, the Department of Home Affairs commenced operation,
transitioning from the Department of Immigration and Border Protection. For further information, see www.homeaffairs.gov.au.
2 Section 19(1) of the Australian Border Force Act 2015 (Cth) provides that the Australian Border Force Commissioner must give
written notice to the Minister of any direct or indirect pecuniary interest that the Commissioner has or acquires and that conflicts
or could conflict with the proper performance of the Commissioner’s functions.

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3. The Department was deemed to have refused the applicant’s request when it did not make a decision by
29 June 2017.3

4. On 7 July 2017, the applicant sought IC review of the deemed decision under s 54L of the FOI Act.

5. On 13 July 2017, in responding to the applicant’s FOI request, the Department decided to neither confirm
nor deny the existence of any documents under s 25 of the FOI Act. The Department advised the
applicant that if the documents sought were to exist, they would be exempt under the documents
affecting enforcement of law and protection of public safety exemption (s 37(1)) of the FOI Act.

6. The issue to be decided in this IC review is whether the Department’s access refusal decision, in neither
confirming nor denying the existence of the documents sought, is justified. In making my decision, I have
had regard to the following:

 the Department's decision and reasons for decision

 the FOI Act, in particular ss 25, 33, 37(1) and 45A

 the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act to which
agencies must have regard in performing a function or exercising a power under the FOI Act (FOI
Guidelines), in particular paragraphs [3.103] — [3.107], [5.79] – [5.104] and [10.13]

 relevant case law, in particular Department of Health v Jephcott (1985) 8 FCR 85; Secretary,
Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited [2010] FCA 1442,
Brooks and Secretary, Department of Defence (Freedom of information) [2017] AATA 258 and Paul
Farrell and Australian Federal Police (Freedom of information) [2017] AICmr 113, and

 the parties' submissions.

7. In setting out my decision and reasons for decision, I have also had specific regard to s 55K(5) of the FOI
Act, which requires that a decision on an IC review must not include information of the kind referred to in
subsection 25(1) or exempt matter.

Information as to the existence of certain documents (s 25)

8. As outlined above at [5], the Department responded to the applicant’s request by neither confirming nor
denying the existence of documents, and advising the applicant that if documents were to exist, they
would be exempt under s 37(1) of the FOI Act.4

3 Under s 15(5) of the FOI Act, an agency is required to notify an applicant of a decision on a request within 30 days after receiving
the request. If an agency does not do so, and the statutory processing period has not otherwise been extended, then under s
15AC(3) of the FOI Act, the principal officer of the agency is deemed to have made a decision refusing access to the documents.
4 Section 37(1) of the FOI Act provides that a document is an exempt document if its disclosure would, or could reasonably be
expected to: prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to
comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance
(s 37(1)(a)); disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the
non-existence of a confidential source of information, in relation to the enforcement or administration of the law (s 37(1)(b)); or
endanger the life or physical safety of any person (s 37(1)(c)). See FOI Guidelines [5.79] – [5.117] and Paul Farrell and Australian
Federal Police (Freedom of information) [2017] AICmr 113 at [16]-[17].
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9. Section 25 of the FOI Act provides:

Information as to existence of certain documents

(1) Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or
non-existence of a document where information as to the existence or non-existence of that document, if
included in a document of an agency, would cause the last-mentioned document to be:
(a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or
(b) an exempt document to the extent referred to in subsection 45A(2) or (3).
(2) If a request relates to a document that is, or if it existed would be, of a kind referred to in subsection (1),
the agency or Minister dealing with the request may give notice in writing to the applicant that the agency
or the Minister (as the case may be) neither confirms nor denies the existence, as a document of the
agency or an official document of the Minister, of such a document but that, assuming the existence of
such a document, it would be:
(a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or
(b) an exempt document to the extent referred to in subsection 45A(2) or (3).
10. Section 25(3) provides that where notice is given under s 25(2) of the FOI Act, the agency or minister’s
decision is taken to be a decision refusing to grant access to a document in accordance with a request, for
the reason that the document would, if it existed, be exempt under ss 33, 37(1) or 45A. In this case the
Department specified that the document would, if it existed, be exempt under s 37(1) of the FOI Act.5

11. As discussed in the FOI Guidelines and in IC review cases,6 the main requirement of s 25 is that giving
information in response to an FOI request as to the existence or non-existence of a document, would
cause the response to be:

a) an exempt document by virtue of ss 33, 37(1) or 45A(1), or

b) an exempt document to the extent referred to in ss 45A(2) or (3).
12. The FOI Guidelines explain:

The act of confirming or denying the existence of a document can sometimes cause damage similar to disclosing
the document itself. For example, merely knowing that an agency has a current telecommunications
interception warrant in connection with a specific telephone service would be sufficient warning to a suspect
who could modify their behaviour and possibly undermine an investigation into serious criminal activity. 7

13. In Paul Farrell and Australian Federal Police (Freedom of information) [2017] AICmr 113 (Farrell), I
considered the application of s 25 by agencies or ministers to neither confirm nor deny the existence of
documents when responding to requests for information under the FOI Act.

14. In that matter, I provided a contextual background on the relevant case law and analysed the application
of s 25. I discussed that section 25(2) provides that an agency or minister may neither confirm nor deny
the existence of a document where a document is, or if it existed would be, ‘of such a kind’ referred to in
s 25(1).

5 During the course of this IC review, the Department provided submissions addressing s 37(1)(a) in support of its decision.
6 Generally, see Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner
under s 93A of the Freedom of Information Act 1982 at [3.103] — [3.107]; Paul Farrell and Australian Federal Police (Freedom of
information) [2017] AICmr 113; Paul Farrell and Australian Federal Police (No. 2) (Freedom of information) [2017] AICmr 126 and
‘NP’ and Bureau of Meteorology (Freedom of information)[2018] AICmr 3.
7 FOI Guidelines [3.103].
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15. This directs the decision maker to first turn their mind to whether the document being sought is of such a
kind that, if it existed, it would be exempt under ss 33, 37(1) or 45A. In that matter, I concluded that this
can generally be done by reference to the terms of the request and the technical expertise of the decision
maker.

16. During the course of this IC review, the Department provided the OAIC with submissions, some of which I
have agreed to accept in confidence on this occasion, due to the nature of the s 25 provision.

17. Following review of the Department’s submissions, the Department was subsequently invited to provide
further submissions in support of its decision. The Department declined to do so.

Considerations
18. The FOI Guidelines explain that agencies and ministers should use s 25 only in exceptional
circumstances.8 This guides the decision maker to further consider whether, in all the circumstances, the
use of s 25 is justified.

19. In relation to the requirement of s 25(1) of the FOI Act, that information as to the existence or non-
existence of a document within the scope of a request, if it were to be contained within a document of an
agency, would itself cause that document to be exempt under ss 33, 37(1) or 45A, I find that the
Department has provided insufficient reasoning to support this contention.

20. Under s 55D(1) of the FOI Act, the agency or minister bears the onus of establishing that the decision
refusing the request is justified, or that I should give a decision adverse to the applicant. 9

21. Having regard to the information before me, I am not satisfied that the Department has discharged its
onus to establish that its decision given in respect of the applicant’s request is justified.

22. Consequently, on the basis of the information provided by the Department, I am not satisfied that the
Department’s response in neither confirming nor denying the existence of documents sought in this case
is justified.

23. Under s 55K of the FOI Act, I set aside the decision of the Department of 13 July 2017. I substitute my
decision that if documents were to exist, they would not be exempt as authorised under s 25.

24. In making this finding, I note that s 11 of the FOI Act provides that every person has a legally enforceable
right, in accordance with the FOI Act, to obtain access to documents of an agency or minister, other than
where a document is exempt.

Timothy Pilgrim
Australian Information Commissioner

28 February 2018

8 FOI Guidelines [3.107].

9 See also FOI Guidelines [10.13].
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Review rights
If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the
decision reviewed by the Administrative Appeals Tribunal (AAT). The AAT provides independent merits review of
administrative decisions and has power to set aside, vary, or affirm an IC review decision.
An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision
(s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application
for review to the AAT. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300
366 700.