Fewster and Director-General, National Archives of Australia

This case concerned an application by Mr. Fewster, a journalist and author, for access to Commonwealth records pertaining to the Australian Secret Intelligence Service (ASIS) between 1954 and 1976, specifically relating to the tenure of its Director-General, Walter Cawthorn. The Director-General of the National Archives of Australia (the Respondent) had refused access to certain parts of these documents, classifying them as exempt records under paragraph 33(1)(a) of the Act. This classification was based on the assertion that disclosure could reasonably be expected to cause damage to the security, defence, or international relations of the Commonwealth. Mr. Fewster sought a review of this decision.

The primary legal issue before the Tribunal was whether the withheld portions of the documents constituted exempt records under section 33(1)(a) of the Act. If they were found to be exempt, the Tribunal also had to consider whether to exercise its discretion under subsection 44(7) of the Act to grant access to all or part of these records. Mr. Fewster contended that a key object of the Act was to preserve and make publicly available archival resources, and that the Respondent bore the onus of establishing the exemption with probative evidence, interpreting the statutory language according to its ordinary English meaning within the context of the Act.

The Tribunal applied several principles in its determination. It affirmed that a record falling within the open access period is prima facie accessible, subject to it not being an exempt record. The review was a merits review, requiring the Tribunal to make the correct decision based on the evidence before it at the time of its decision, not when the documents were created. The Tribunal considered evidence, including an unclassified affidavit from Mr. Darby, which detailed ASIO's need for secrecy regarding its areas of interest, methods, sources, and relationships with foreign intelligence services to maintain its operational effectiveness and prevent damage to national security and international relations. The Tribunal concluded that the redacted material contained sensitive details of ASIO's methods and procedures, potentially still in use, and references to confidential sources and foreign liaison relationships, the disclosure of which could reasonably be expected to cause damage to the security or international relations of the Commonwealth. The Tribunal also considered the "mosaic theory," whereby seemingly insignificant pieces of information, when combined, could reveal valuable intelligence.

Ultimately, the Tribunal affirmed the decision of the National Archives of Australia made on 29 April 2019. It found that each of the documents and redacted text withheld from Mr. Fewster was an exempt record within the meaning of the Act, as their disclosure could reasonably be expected to cause damage to the security, defence, or international relations of the Commonwealth. The Tribunal also determined that there was no basis to exercise its discretion under subsection 44(7) to grant access to any part of the exempt records.