Frati and Australian Criminal Intelligence Commission (Freedom of information) - [2025] ARTA 1775

Frati and Australian Criminal Intelligence Commission (Freedom of information) [2025] ARTA 1775 (12 September 2025)
Applicant:Giovanni Frati
Respondent: Chief Executive Officer Australian Criminal Intelligence Commission
Tribunal Number: 2024/5407

Tribunal:General Member Darian-Smith
Place:Sydney
Date:12 September 2025

Decision:The Tribunal affirms the decision under review.

..............................[SGD]..........................................
General Member Darian-Smith
Catchwords
FREEDOM OF INFORMATION – request for access to redacted portions of document – whether redactions exempt under subsection 37(2)(b) of the Act – whether notice of refusal to confirm or deny existence of document could be given under s 25 of the Act – request for access refused – notice validly given – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth) s 70
Australian Crime Commission Act 2002 (Cth) s 7A
Freedom of Information Act 1982 (Cth) ss 11A, 11B, 25, 37, 47B, 47E, 54W, 61, 93A
Cases
Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180
Brooks and Secretary, Department of Defence [2017] AATA 258
Chemical Trustee Ltd & Ors and Commissioner of Taxation and Chief Executive Officer, AUSTRAC [2013] AATA 623
Department of Health v Jephcott (1985) 8 FCR 85; 62 ALR 421
Fernandes and Director-General, National Archives of Australia [2020] AATA 128
Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355
Re Maksimovic and Australian Customs Service [2009] AATA 28
Secondary Materials
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
Statement of Reasons

The Applicant (Mr Frati) seeks review of a decision made by the Australian Criminal Intelligence Commission (ACIC) to refuse access to one document in part and to neither confirm nor deny the existence of other documents under provisions of the Freedom ofInformation Act 1982 (Cth) (FOI Act).
On 20 May 2024, the ACIC decided under section 55G of the FOI Act (ReviewableDecision) to grant Mr Frati access in full to one document (Document 2), access in part to another document (Document 1) and it otherwise neither confirmed nor denied the existence of any other documents within the scope of Mr Frati’s request for access to documents under the FOI Act.[1]
[1] T2, Tribunal Book (TB) pages 12 – 19.
The Reviewable Decision has two separate aspects to it which are stated in the Reviewable Decision in the following terms:
(a) “Release 1 document in full and release in part 1 document relating to your personal information held under national policing information systems, with the deletion of material that is exempt pursuant to ss 37(2)(b), 47B(a), and 47E(d) of the FOI Act.”
(b) “Neither confirm nor deny the existence of a document/s within the broader scope of your request pursuant to s 25(1) of the FOI Act on the basis that, if such a document/s existed, they would be exempt pursuant to s 37(1) of the FOI Act.”
The Reviewable Decision came considerably after Mr Frati’s request for access, which occurred on 6 March 2020, and which was framed in the following terms:
“… a complete report of all the personal information that the ACIC holds about myself starting from January 2018 until present [the date of the request, 6 March 2020]
… any information that ACIC may hold (either digital or physical) with regard to myself.
I would also like to know which other agencies/individuals/companies ACIC may have exchanged my personal information with.”[2]
[2] T3, TB page 20.
On 20 May 2024, immediately after receipt of notice of the Reviewable Decision, Mr Frati applied to the Office of the Australian Information Commissioner (OAIC) for an OAIC review of the Reviewable Decision. The OAIC’s delegate exercised her discretion not to undertake an OAIC review under subsection 54W(b) of the FOI Act.[3] The delegate was satisfied that it would be more appropriate and efficient for the application to be made directly to the Administrative Appeals Tribunal (AAT).
[3] T13, TB pages 57 – 63.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal
The Respondent’s Statement of Facts, Issues and Contentions dated 25 February 2025 (Respondent’s SFIC) states the issues for determination by the Tribunal in the following terms:
(a) “whether parts of Document 1 (the marked parts) are exempt from disclosure under ss 37(2)(b), 47B(a), and/or 47E(d) of the FOI Act, and
(b) whether the ACIC can validly give notice to the applicant that it neither confirms nor denies the existence of any additional documents that may be responsive to the FOI request, pursuant to s 25(2) of the FOI Act, on the basis that information regarding the existence of any additional documents, if included in a document of the ACIC, would be exempt from disclosure under s 37(1).”[4]
The Tribunal refers to these issues as Issue 1 and Issue 2, respectively.
[4] Respondent’s SFIC, [7].
In addition to the Respondent’s SFIC, ACIC relied upon the following affidavit evidence:
(a) Affidavit of Jeremy Johnson affirmed 24 February 2025 (with exhibit JJ-1) (Johnson Affidavit).
(b) Affidavit of Boyd Doherty affirmed 21 February 2025 (Doherty Affidavit). and
(c) Affidavit of Damien Luke Appleby sworn 31 July 2025 (Appleby Affidavit).
Mr Frati elected not to cross examine any of ACIC’s witnesses and the three affidavits were admitted into evidence.
The Johnson Affidavit was directed to ACIC’s concerns regarding the redacted portions of Document 1. The Doherty and Appleby Affidavits were directed to the circumstances of, and the issues raised by, ACIC’s reliance upon section 25 of the FOI Act. Portions of the Johnson and Doherty Affidavits were redacted, and the redactions were made the subject of a non-disclosure/publication order of the Tribunal dated 31 July 2025 under subsection 70(2)(b)(i) of the Administrative Review Tribunal Act 2024 (Cth).
In considering its decision, the Tribunal has reviewed a complete unredacted version of Document 1 as well as the full unredacted versions of each of the Johnson and Doherty Affidavits. None of the redacted material from these documents has been expressly referred to in these Reasons.
The ACIC accepts that it has the onus, under subsection 61(1)(b) of the FOI Act of establishing that the Reviewable Decision is justified, or that the Tribunal should give a decision adverse to the applicant.
Section 93A(2) of the FOI Act requires the Tribunal to have regard to the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines) in making its decision.
LEGISLATIVE FRAMEWORK
The provisions of the FOI Act which are engaged for the purpose of determining this application for review are the exemption provision applying to documents affecting enforcement of law and protection of public safety (s 37), the public interest conditional exemption concerning Commonwealth-State relations (s 47B), the public interest conditional exemption concerning certain operations of agencies (s 47E), the public interest exemption (s 11A(5)) and the factors informing the public interest exemption (s 11B) and the provision governing information as to the existence of certain documents (s 25). The relevant parts of these provisions are set out below.
The enforcement of law and protection of public safety exemption is set out in section 37 of the FOI Act, which provides:
“37 Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) 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;
(b) 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; or
(c) endanger the life or physical safety of any person.
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breached or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those matters or procedures.”
The relevant public interest conditional exemption concerning Commonwealth-State relations is set out in subsection 47B(a) of the FOI Act, which provides:
“47B Public interest conditional exemptions—Commonwealth-State relations etc.
A document is conditionally exempt if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a state;”
The relevant public interest conditional exemption concerning certain operations of agencies is set out in subsection 47E(d) of the FOI Act, which provides:
“47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).”
The public interest exemption which is engaged when a public interest conditional exemption attaches to a document is set out in subsection 11A(5) of the FOI Act, which provides:
“11A Access to documents on request
Exemptions and conditional exemptions
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.”
Subsection 11A(5) is to read with section 11B of the FOI Act, which sets out the factors to be taken into account when considering public interest exemption. Section 11B provides:
“11B Public interest exemptions—factors
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the national interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.”
Section 25 of the FOI Act, is the provision governing the release of information as to the existence of certain documents, and provides:
“25 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 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).
(3) If a notice is given under subsection (2) of this section:
(a) section 26 applies as if the decision to give the notice were a decision referred to in that section; and
(b) the decision is taken, for the purposes of Part VI, to be a decision refusing to grant access to the document in accordance with the request referred to in subsection (2) of this section, for the reason that the document would, if it existed, be:
(i) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or
(ii) an exempt document to the extent referred to in subsection 45A(2) or (3).”
ISSUE 1: WHETHER THE MARKED PARTS OF DOCUMENT 1 ARE EXEMPT FROM DISCLOSURE
The ACIC’s primary submission on Issue 1 is that the marked parts of Document 1 are exempt from disclosure under subsection 37(2)(b) of the FOI Act (subsection 37(2)(b) exemption). If the ACIC satisfies the Tribunal that the subsection 37(2)(b) exemption is applicable, that is the end of the matter.
If the Tribunal is not so satisfied, the ACIC’s fallback submission is that the marked parts of Document 1 are conditionally exempt under subsection 47B(a) and/or subsection 47E(d) of the FOI Act. Subsection 11A(5) of the FOI Act provides that if the marked parts of Document 1 were found to be conditionally exempt, they would still be released “unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.”
The two factors which must be satisfied for the subsection 37(2)(b) exemption to apply, are:
(a) there must be a reasonable expectation that the release of a document will disclose a lawful method or procedure for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law. and
(b) there must be a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure.[5]
[5] Respondent’s SFIC, [13]. FOI Guidelines, [5.127].
The meaning of “reasonably expected” in section 37 of the FOI Act was considered in Chemical Trustee Ltd & Ors and Commissioner of Taxation and Chief Executive Officer, AUSTRAC[6], in which the Tribunal stated:
“… The phrase “would or could reasonably be expected” means that there must be at least a real, significant or material possibility of prejudice and a mere “suspicion” or “remote chance” would not satisfy the test… The test laid down will be satisfied if there is either a likelihood of this consequence or a possibility of the consequence based on reasonable grounds.”[7]
[6] [2013] AATA 623.
[7] [2013] AATA 623, [79].
In Re Anderson and Australian Federal Police[8] (Anderson), Deputy President Hall set out the following matters as to the subsection 37(2)(b) exemption:
“Intelligence gathering is a time-honoured method of preventing breaches or evasions of the law. The lawful methods and procedures employed in so doing may vary from quite routine overt police enquiries to a range of more clandestine or covert operations. Section 37(2)(b) is capable of protecting these methods or procedures where their disclosure would, or would be reasonably be likely to, prejudice their effectiveness.
A document may disclose methods or procedures either by specifically referring to or describing them or by providing information from which the methods or procedures employed may be capable of being inferred. Thus, the disclosure of a document containing information that, on the face of it, is purely factual, may nevertheless be information known only to a chosen few members of a particular group. To reveal that information may disclose the existence or identify a confidential source of information in relation to the enforcement or administration of the law. It may equally serve to confirm what may otherwise only be suspected, namely, the methods or procedures for preventing or detecting possible breaches or evasions of the law employed by the police in order to meet a perceived threat…
In my view, however, a document which discloses intelligence gathered by the police, but reveals nothing as to the source of that information or as to lawful police methods or procedures, is not within the potential scope of the exemption provided by s 37(1)(b) or s 37(2)(b) …
Where a lawful police method or procedure would be disclosed, s 37(2)(b) requires that prejudice to the effectiveness of those methods or procedures must be established before the exemption is made out. Questions of prejudice are, I think, more likely to arise where the disclosure of a document would disclose covert, as opposed to overt or routine methods or procedures… disclosure of methods or procedures would be “reasonably likely” to prejudice their effectiveness if, on reasonable grounds, it is found that there is a “real risk” of such prejudice. Finally, it must be noted that, for the purposes of s 37, no consideration may be given to any countervailing public interest in favour of disclosure: see Department of Health v Jephcott (1985) 62 ALR 421.”[9]
[8] [1986] AATA 79; (1986) 11 ALD 355.
[9] (1986) 11 ALD 355, 364 – 365.
In Re Maksimovic and Australian Customs Service[10], the Tribunal made the following useful observations about the operation of the subsection 37(2)(b) exemption:
“Section 37(2)(b) is part of the respondent’s focus in its claim for exemption from release of the two documents remaining in issue. The section may be deconstructed into the following parts namely,
* The document is exempt if its disclosure would or could reasonably be expected to:
* Disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law; and
* The disclosure of which would or would be reasonably likely to prejudice the effectiveness of those methods or procedures.
There are a number of features of this section which deserve comment. The use of the less stringent could as an alternative to would in the first dot point concerning exemption requires no more than a degree of reasonableness being applied to deciding whether disclosure would cause the consequences found within subparagraph (b). Such a finding need not be satisfied by the decision-maker being satisfied on the balance of probabilities (refer Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180) …”[11]
“The word would, or the phrase would be reasonably likely in the third dot point is an indication of a belief by Parliament (preferring it to the word could) that the methods and procedures described in the second dot point if disclosed, would, on the probabilities, cause prejudice.”[12]
[10] [2009] AATA 28.
[11] [2009] AATA 28, [27] – [28].
[12] [2009] AATA 28, [31].

The FOI Guidelines as they relate to the subsection 37(2)(b) exemption state:
(a) “The word ‘lawful’ is intended to exclude unlawful methods and procedures, for example, methods involving illegal telephone interception or entrapment.”[13]
(b) “The exemption will not apply to routine techniques and procedures that are already well known to the public or documents containing general information.”[14] and
(c) It follows from (b) that the techniques and procedures under consideration would be “neither obvious nor a matter of public notoriety” and most likely the exemption would apply if disclosure of a document would disclose covert methods or procedures.[15]
[13] FOI Guidelines, [5.126].
[14] FOI Guidelines, [5.128].
[15] FOI Guidelines, [5.129].
The ACIC relied on the Johnson Affidavit in support of the applicability of the subsection 37(2)(b) exemption to the marked parts of Document 1.
Mr Johnson is employed by the ACIC as Executive Director Business and Partnerships, a role he has held since 1 June 2021. Prior to that Mr Johnson held other roles with the ACIC and one of its predecessors (Crim Trac) and roles in the New South Wales and Victorian police forces. In his current position he is responsible for the Capability Support Branch (which includes responsibility for the National Policing Information systems (NPI systems)) and the National Police Checking Branch (through which the National Police Checking Service (NCPS) delivers coordinated criminal history checking services to Australian policing agencies and accredited bodies).[16]
[16] Johnson Affidavit, [1] – [3].
Mr Johnson’s extensive experience with the administration by the ACIC of the NPI system and his hands on involvement with partner agencies in the gathering of information and intelligence about persons who are involved in serious and organised crime qualifies him to:
(a) give evidence as to the marked parts of Document 1; and
(b) offer his opinion as to the harm that would, or would be reasonably likely to, flow from disclosure of the marked parts of document 1.
The ACIC submits that Mr Johnson’s opinion referred to in paragraph [27(b)] above “ought to be given significant weight.”[17] For the reasons which follow, the Tribunal agrees with that submission.
[17] Respondent’s SFIC, [20].
The Johnson Affidavit explains that:
(a) Document 1 is an extract of National Policing Information in relation to Mr Frati, obtained from the National Police Reference System (NPRS).[18]
(b) the NPRS enables the ACIC’s partner agencies to access and share policing information with other police agencies, thereby enabling operational police to “make on-the-spot decisions when dealing with persons of interest.”[19]
(c) the NPI systems are used by the ACIC and its partner police agencies to combat domestic and international crime, relying “on a close working relationship involving the open and complete communication of information with its partner agencies to conduct its operations and perform its NPI function.”[20] and
(d) in processing Mr Frati’s FOI request, the ACIC consulted with two State law enforcement agencies, both of which had provided some of the information contained in Document 1 and agreed with the redaction of the marked parts of Document 1.[21]
[18] Johnson Affidavit, [6.1].
[19] Johnson Affidavit, [10.1].
[20] Johnson Affidavit, [11] – [12].
[21] Johnson Affidavit, [14]. The consultation responses of the partner agencies are to found at T10 and T11.
Mr Johnson expresses his concern (at paragraph [23.1] of the Johnson Affidavit), that disclosure of the marked parts of Document 1 would “reveal (and, in doing so, prejudice) law enforcement methodology.”
Part of what would be revealed if disclosure of the marked parts of Document 1 were to be given, is what is shown on two of the tabs on Document 1. The Johnson Affidavit provides a description of how the tabs function within Document 1:
“Document 1 contains numerous tabs and pages from the NPRS system. The way the NPRS system works is that a police officer (or the ACIC) can click on one of the tabs, which brings up a page relating to that tab. For example, clicking on the ‘Offence History’ tab brings up the ‘Offence History’ page for that partner agency, as displayed at the top of page 4 of Document 1. While the tab names are consistent, the contents of the actual page for each tab may differ between partner agencies.”[22]
[22] Johnson Affidavit, [25].
Mr Johnson later expands upon the ACIC’s concerns if what is on the two marked tabs were to be disclosed:
“While disclosure of one single example of the one or more tabs in issue… may not necessarily in itself prejudice the methodologies behind them, I am concerned that through mosaic analysis[23] a person could compare instances of such tab or tabs between how they appear in this document and other information that is or may be publicly available and compile a sophisticated picture of law enforcements coverage of a person or criminal actor, enabling them to frustrate the effective use of NPI systems for sharing of information. Of particular concern is that, were the tab or tabs required to be released under the FOI Act, it becomes all the more likely that other instances of the tab or tabs are made publicly available for comparison in future.”[24]
[23] Mr Doherty discusses mosaic analysis in the Doherty Affidavit, [23]. See paragraphs [54] – [57] of these Reasons.
[24] Johnson Affidavit, [33].
As stated in paragraph [10] of these Reasons above, the Tribunal has carefully examined the redacted portions of both Document 1 and of the Johnson Affidavit, including paragraphs [34] – [38] of the Johnson Affidavit. None of that redacted content will be referred to in these Reasons but the Tribunal accepts Mr Johnson’s evidence as to how the redacted portions of Document 1, if disclosed, would “reveal law enforcement and criminal intelligence methodologies.”[25]
[25] Respondent’s SFIC, [19].
The ability to discern law enforcement methods or procedures by having what is shown on the redacted tabs revealed would, in my view, and as described in Anderson, “provid[e] information from which the methods or procedures employed may be capable of being inferred.”[26] The inference could be drawn through mosaic analysis or otherwise.
[26] (1986) 11 ALD 364, (36).
I am satisfied, on the evidence of Mr Johnson, that a lawful (and covert) method or procedure for preventing, detecting, investigating and dealing with matters arising out of breaches or evasions of the law would be disclosed if an unredacted version of Document 1 were to be released.
I am also persuaded that if those methods and procedures were to be disclosed, that disclosure would, on the probabilities, cause prejudice to the effectiveness of those methods and procedures. Accordingly, I am satisfied that disclosure would cause the consequences found within subsection 37(2)(b) and that the subsection 37(2)(b) exemption applies to the marked parts of Document 1.
It follows that I have determined that the ACIC has correctly maintained that the marked parts of document 1 are exempt from release under the subsection 37(2)(b) exemption.
Having found that the marked parts of Document 1 are exempt under subsection 37(2)(b) of the FOI Act, it is not necessary for the Tribunal to consider the public interest conditional exemptions in subsections 47B(a) and/or 47E(d) of the FOI Act.
ISSUE 2: WHETHER THE ACIC CAN GIVE NOTICE UNDER SUBSECTION 25(2) OF THE FOI ACT
Subsection 25(2) of the FOI Act permits ACIC to give a notice in writing that it neither confirms nor denies the existence of a document on the basis that if a document of that type were to exist, it would be exempt under subsection 37(1) of the FOI Act.[27] It is enough that that the response which confirms or denies the existence of the request would itself be exempt under section 37 (or section 33) of the FOI Act.
[27] See also FOI Guidelines, [3.103] – [3.105].
The Tribunal considered the operation of subsection 25(2) of the FOI Act in Brooks and Secretary, Department of Defence[28] (Brooks), which was a section 33 case, but the reasoning applies equally to a section 37 case. Deputy President Constance stated:
“I accept the argument of the Secretary that subsection 25(2) “does not, by its terms, require the relevant agency or Minister 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 – if the agency or Minister is satisfied of that, they are entitled to provide a response in the terms set out in s 25(2).
It is the fact of denial or confirmation of the existence of documents, if that confirmation or denial was itself recorded in a document, which must meet the requirements of section 33 to be an exempt document. If the requirements of section 33 are met in these circumstances, the agency or Minister is empowered to give the subject notice. At no stage of this process is the agency or Minister required to consider whether there are, in fact, documents which themselves are exempt under section 33. Furthermore, subsection 25(2) does not require that a “document” be assumed to exist and then be subjected to the requirements of section 33.
As counsel for the Secretary correctly pointed out, the interpretation for which Ms Brooks argues would require a decision-maker to construct an imaginary document, including the information it may contain, and then determine whether this hypothetical document would be exempt under section 33. I do not accept that this was the intention of Parliament.”[29]
[28] [2017] AATA 258.
[29] [2017] AATA 258, [29] - [31].
The Deputy President had cause in Fernandes and Director-General, National Archives of Australia[30] (Fernandes) to consider Subsection 39(1) of the Archives Act 1983 (Cth), a subsection in all relevant respects the same as subsection 25(1) of the FOI Act. DP Constance referenced paragraphs [29] and [30] from the reasons in Brooks and said he maintained his view, rejecting a two-step process in which the first step would be to determine if the request related to documents that were, or would be if they existed, exempt from disclosure.
[30] [2020] AATA 128.
The Tribunal in Fernandes went on to state:
“I find support for the conclusion I have reached in the judgment of Forster J in Department of Health v Jephcott:[31]
“Section 25 is in some respects rather curious in that it provides for the notional creation of a hypothetical document. In this case it is a document of the agency including information as to the existence or non-existence of a letter or a memorandum of some other sort recording information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead. If such a hypothetical document existed and was an exempt document by virtue of s 37(1) then the Department was entitled to give the answer which it gave neither admitting nor denying the existence of any record of information given by Mrs Butler. … If the hypothetical document to which I have referred would “disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law” then the hypothetical document would be exempt and pursuant to s 25(2) the Department was entitled to give notice to Mrs Jephcott as it did, neither confirming nor denying the existence of records of information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead.”
On the basis of the evidence of Mr Symon given in the open and closed sessions, I am satisfied that if information as to the existence or non-existence of the requested records was contained in a Commonwealth record, that Commonwealth record itself would be an exempt record.”[32]
[31] (1985) 8 FCR 85, 88.
[32] [2020] AATA 128, [28] – [29].
Mr Frati’s first submission concerning section 25 was that the section should only be applied in the narrow case where the existence of any documents falling within an FOI request had not been confirmed or denied. In the present case the existence of 2 documents had already been confirmed by the ACIC and section 25 would not be applicable where there had already been part compliance with an FOI request.
Mr Frati’s second submission was that the ACIC’s position proceeded on an assumption that any acknowledgement by the ACIC as to the existence of further documents would cause the proscribed harm and the assumption as to whether there were further documents could not be applied in the abstract in this way. It followed that the Tribunal should ask the ACIC whether further documents in fact existed, before considering the further application of subsection 37(1) and section 25 of the FOI Act.
The Tribunal does not read section 25 of the FOI Act, or the relevant decided cases concerning it, to support either of Mr Frati’s submissions. The Tribunal in Brooks expressly rejected a two-step process by which the Tribunal would need first to determine if there were in fact any documents in existence (and ask to see them) before considering whether the subsection 37(1) exemption was engaged. The ACIC is not required by section 25 to establish that any document of a kind sought by Mr Frati would in fact be an exempt document under subsection 37(1), nor does it require the ACIC to search for and identify any documents the existence of which it may be suitable to neither confirm nor deny.[33]
[33] Respondent’s SFIC, [56]. See also the FOI Guidelines [3.105].
The correct approach is the single step of considering whether a hypothetical document which merely confirms or denies whether there are other documents (in addition to Documents 1 and 2) would itself be an exempt document under subsection 37(1). If the answer to that question is “yes”, it would be appropriate to give the notice under subsection 25(2) of the FOI Act. As outlined below, the Tribunal is persuaded by the evidence contained in the Doherty and Appleby Affidavits that the correct answer to that question is “yes”.
The ACIC relied principally on the Doherty Affidavit in support of the proposition that confirmation or denial of the existence of documents held by it in its criminal intelligence systems would adversely impact the enforcement of law and the protection of public safety.
Mr Doherty is employed by the ACIC as its National Manager, North Operations, with responsibility for the delivery of intelligence operations in New South Wales, Queensland and the Northern Territory.[34] Prior to his joining the ACIC in 2021, Mr Doherty states that he worked for the (now) Australian Border Force and the Department of Home Affairs for 26 years.[35]
[34] Doherty Affidavit, [1].
[35] Doherty Affidavit, [3].
Mr Doherty describes his current role at the ACIC as follows:
“In this role I manage a workforce of ACIC intelligence analysts and investigating officers that collect criminal information and intelligence and conduct special ACIC operations to combat serious and organised crime. The ACIC also works closely with national and international partners…”[36]
[36] Doherty Affidavit, [2].
The Tribunal considers Mr Doherty to be well qualified to give evidence as to the ACIC’s criminal intelligence function.
The Doherty Affidavit:
(a) sets out the ACIC’s key statutory functions which are found in section 7A of the Australian Crime Commission Act 2002 (Cth) (ACC Act).[37] Those key statutory functions are to collect, correlate and analyse criminal intelligence,[38] and to undertake special ACC operations and investigations.[39]
(b) explains the ACIC’s reliance on maintaining secrecy and confidentiality in relation to its intelligence gathering methods as well as its need to have open and complete communication of confidential information with its partner agencies.[40]
(c) states that the ACIC maintains sensitive systems and datasets which have been built solely to support the performance by the ACIC of its statutory functions (referred to as its criminal intelligence holdings).[41]
(d) describes the nature of the material held by the ACIC within its criminal intelligence holdings, and the ways in which that material is collected.[42] and
(e) expresses his opinion that: “Confirmation whether the ACIC does, or does not, hold any documents in relation to a particular person would necessarily impact on the ACIC’s ability to perform its core functions of intelligence gathering and investigation efficiently and effectively.”[43]
[37] Doherty Affidavit, [9].
[38] Subsection 7A(a) ACC Act.
[39] Subsection 7A(b) and (c) ACC Act.
[40] Doherty Affidavit, [12].
[41] Doherty Affidavit, [14].
[42] Doherty Affidavit, [21].
[43] Doherty Affidavit, [22].
Mr Doherty gives a brief description of mosaic analysis and how it is used by criminal actors to combine many disparate pieces of information (referred to elsewhere in the Doherty Affidavit as “tiles” of information)[44] to draw reliable inferences. One such disparate piece of information may be the confirmation or denial by the ACIC of the existence of particular documents.[45] He later explained why routine denials by the ACIC of the existence of criminal intelligence holdings where there are no relevant documents held by ACIC, are inadvisable.[46]
[44] Doherty Affidavit, [28].
[45] Doherty Affidavit, [23].
[46] Doherty Affidavit, [27].
Mr Doherty went on to explain the consequences for the ACIC’s ability to function effectively in the following terms:
“The ability of the ACIC to perform its functions effectively depends on it protecting and maintaining confidential information in its holdings in relation to any individual or investigation. Confirming or denying the existence of any hypothetical criminal intelligence documents with respect to a particular person would provide information from which to draw inferences and conclusions about matters that may, or may not, be under investigation. This would allow criminal actors to react or adjust their behaviour accordingly to prejudice, game or undermine the ACIC’s and other law enforcement and intelligence agencies ability to obtain relevant information and data in the future. Revealing that the ACIC holds criminal intelligence about a person would provide insights into the extent or nature of the ACIC’s criminal intelligence holdings, including if a particular individual is known to be a person of interest. Conversely, revealing that the ACIC does not hold criminal intelligence about a person could reasonably be expected to provide criminal actors with confirmed knowledge of, and therefore the ability to exploit, gaps in Australia’s criminal intelligence gathering efforts… “[47]
[47] Doherty Affidavit, [26].
Mr Doherty’s evidence is that care must be exercised by the ACIC not to disclose too many information tiles which might reveal the “extent or nature” of the ACIC’s criminal intelligence holdings. The example of such a tile given by Mr Doherty, is whether a particular person is a person of interest to law enforcement agencies. Were that tile of information to be in the possession of criminal actors, it might assist them to “avoid conduct or behaviours which are subject to intelligence collection efforts by the ACIC or its partner agencies.”[48]
[48] Doherty Affidavit, [28].
Further, and in the absence of knowledge as to what other tiles of information might be held by any particular criminal actor, it is not possible to quantify the likelihood that any particular tile might be used in mosaic analysis. However, the ACIC’s position is that it “ought not to be required to disclose information that is capable of assisting” criminal actors in this way because any such assistance “necessarily diminishes [its] ability to gather intelligence and respond to the threats they present.”[49]
[49] Doherty Affidavit, [30].
In addition, Mr Doherty states that the confirmation or denial by the ACIC that it holds criminal intelligence information could have implications for the life or physical safety of members of the public. The risk is that sophisticated criminals could use information of this kind to determine that an individual has not come to the attention of law enforcement agencies and therefore that any covert activities carried out by that person would be less likely to be detected by those law enforcement agencies.[50] It is in this context that the exemption in subsection 37(1)(b) and (c) of the FOI Act, would be enlivened.
[50] Doherty Affidavit, [32].

The conclusion which Mr Doherty draws from the evidence set out in the Doherty Affidavit is that:
“confirmation or denial of the existence of any further documents held outside of the ACIC’s NPI systems and corporate information holdings would or could reasonably be expected to affect the enforcement of law and protection of public safety by prejudicing ongoing investigations and endangering the life and physical safety of members of the public.”[51]
[51] Doherty Affidavit, [33].
The Appleby Affidavit was filed by the ACIC to provide further confirmation of the matters deposed to by Mr Doherty in the Doherty Affidavit, and to facilitate the cross examination of an ACIC witness at the hearing as to section 25 matters (in the absence of Mr Doherty), had that been required.
Mr Appleby states that he has been employed by the ACIC as its National Manager, Specialist Capabilities, since 7 April 2025, with responsibility for the ACIC’s surveillance and technical capabilities.[52]
[52] Appleby Affidavit, [2].
Prior to that, Mr Appleby was employed by the ACIC as its National Manager, South Operations, with responsibility for delivery of intelligence operations in Victoria, South Australia, Western Australia, Tasmania and the Northern Territory. Mr Appleby describes that role in the following terms:
“I managed a workforce of ACIC intelligence analysts and investigating officers that work with national and international partners to conduct special ACIC operations to combat serious and organised crime threats.”[53]
[53] Appleby Affidavit, [3].
Before joining the ACIC in March 2022, Mr Appleby had a decorated 31-year career with the Australian Federal Police (AFP). Mr Appleby’s career with the AFP has included acting in the role of Coordinator for Organised Crime in the AFP Melbourne Office before being appointed to a senior transnational role for the AFP in Hong Kong and being involved in taskforces investigating Transnational Serios Organised Crime Syndicates operating in or affecting Victoria. In 2018, he was awarded the Australian Police Medal by the Governor General and, in 2021, ’Gold’ Senior Investigating Officer status by the AFP Commissioner.[54]
[54] Appleby Affidavit, [4.2] – [4.6].
Mr Appleby states that his 34 years’ experience in law enforcement has provided him with: “extensive experience and knowledge in relation to criminal investigations, including multi-agency and multinational investigations. I have also gained a detailed and sophisticated understanding of police and ACIC practice and procedure in relation to the conduct of such investigations.”[55]
[55] Appleby Affidavit, [5].
The Tribunal considers Mr Appleby to be highly qualified to give evidence as to the ACIC’s criminal intelligence function.
Mr Appleby deposes to having read the Doherty Affidavit and that he “agree[s] with the concerns Mr Doherty raises.”[56] Mr Appleby agrees with, and repeats as his own, the conclusion reached by Mr Doherty in the Doherty Affidavit as to the section 25 issue.[57]
[56] Appleby Affidavit, [7].
[57] Appleby Affidavit, [8].
When read together, the Doherty and Appleby Affidavits are persuasive in their support of this being a case in which a notice under subsection 25(2) of the FOI Act is a necessary and appropriate step. The Tribunal notes that Mr Frati elected not to cross examine Mr Appleby. The Tribunal treats the unchallenged evidence in the Doherty and Appleby Affidavits and being compelling and decisive evidence on the section 25 issue.
That evidence supports the ACIC’s submission that the release of any information pertaining to whether the ACIC does, or does not, hold relevant documents in relation to Mr Frati:
“… would necessarily impact on the ACIC’s ability to perform its core functions of intelligence gathering and investigation… Revealing that the ACIC:
[a] does hold criminal intelligence about a person would provide insights into the extent or nature of the ACIC’s criminal intelligence holdings, including if a particular individual is known to be person of interest.
[b] does not hold criminal intelligence about a person could reasonably be expected to provide criminal actors with confirmed knowledge of, and therefore the ability to exploit, gaps in Australia’s criminal intelligence gathering efforts.”[58]
The Tribunal agrees with this submission.
[58] Respondent’s SFIC, [61].
CONCLUSIONS AND DECISION
For the Reasons set out above, the Tribunal is satisfied that the:
(a) marked parts of Document 1 are exempt from disclosure. The applicable exemption is the exemption under subsection 37(2)(b) of the FOI Act. and
(b) ACIC can validly give notice to Mr Frati, under subsection 25(2) of the FOI Act, that it neither confirms nor denies the existence of any additional documents that may be responsive to the FOI request on the basis that the information regarding the existence of any additional documents, if included in a document of the ACIC, would be exempt from disclosure under subsection 37(1) of the FOI Act.
Accordingly, the Tribunal’s answer on each of Issues 1 and 2 is “yes” and the Tribunal affirms the decision under review.
Date of Hearing:  8 August 2025
Applicant:  Mr G Frati (self-represented)
Counsel for the Respondent: Mr M Varley
Solicitor for the Respondent:   Mr A Parsons (AGS)