Brooks and Secretary, Department of Defence (Freedom of information)

The applicant, Ms. Brooks, sought access to documents from the Department of Defence concerning the presence and activities of the United States Joint Special Operations Group (JSOC) in Australia, including training provided to Australian military, police, or intelligence organisations. The Department of Defence refused to confirm or deny the existence of these documents, asserting that any such document would be exempt under section 33 of the *Freedom of Information Act 1982* (Cth) due to potential damage to the security, defence, or international relations of the Commonwealth. This decision was affirmed on internal review and subsequently reviewed by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether section 25(2) of the FOI Act permitted the Department to refuse to confirm or deny the existence of documents when the potential disclosure of such documents would fall under a section 33 exemption, and whether this refusal was justified. The Tribunal was required to consider the application of the "mosaic theory" in assessing the potential harm from disclosure, particularly in the context of defence and international relations.

The Tribunal affirmed the Department's decision, reasoning that section 25(2) allows an agency to refuse to confirm or deny the existence of a document if its disclosure would cause the document to be exempt under specific provisions, including section 33. The Tribunal accepted evidence that confirming or denying the existence of the requested documents, or disclosing their contents, could reasonably be expected to cause damage to the security of the Commonwealth, the defence of the Commonwealth, or the international relations of the Commonwealth, particularly in light of Australia's alliance with the United States and the potential for "mosaic analysis" by threat elements. The Tribunal found that the evidence supported the conclusion that disclosure could undermine trust with allied nations and provide valuable intelligence to adversaries.