Fernandes and Director-General, National Archives of Australia

This matter concerned an application by Dr Fernandes for access to records held by the National Archives of Australia, specifically relating to the presence and operations of the Australian Secret Intelligence Service (ASIS) in Cambodia between 1965 and 1970. The Director-General of the National Archives declined to confirm or deny the existence of such records, a decision that Dr Fernandes sought to have reviewed. The case was heard by Deputy J W Constance P.

The central legal issue before the court was whether the Director-General's decision to neither confirm nor deny the existence of the requested records was lawful. This involved determining whether disclosing information about the existence or non-existence of these records would cause those records to be exempt under specific provisions of the *Archives Act*. The court was required to interpret section 39(1) of the Act, which deals with the disclosure of information as to the existence of certain documents, and consider whether the "Commonwealth record" referred to in that section encompassed hypothetical documents.

The court considered evidence from the Director-General of ASIS, who explained the critical importance of secrecy to ASIS operations and the potential damage that public disclosure, even confirmation of a record's existence, could cause through methods like mosaic analysis. This analysis could reveal ASIS's areas of interest, capabilities, and vulnerabilities, thereby assisting adversaries. The Director-General stated that confirming or denying the existence of records relating to ASIS in Cambodia between 1965 and 1970 could reasonably be expected to cause damage to the security, defence, or international relations of the Commonwealth. The court accepted this evidence and reasoned that section 39(1) of the *Archives Act* permitted the Archives to withhold information about the existence of records if such disclosure would cause the record itself to be exempt. The court found that the Director-General's interpretation of the Act, which allowed for the non-confirmation or denial of hypothetical records, was permissible.

Consequently, the court affirmed the reviewable decision of the Director-General, National Archives of Australia, to notify Dr Fernandes that the existence of records relating to ASIS presence and operations in Cambodia between 1965 and 1970 was neither confirmed nor denied.