OJG Engineering Pty Ltd and Commissioner of Taxation

This matter concerned two applications for review of a decision by the Australian Information Commissioner (IC), which affirmed the respondent's decision to neither confirm nor deny the existence of documents sought by the applicants under the *Freedom of Information Act 1983* (Cth). The applicants, through their legal representatives, had requested correspondence between the Australian Taxation Office (ATO) and a law firm concerning the taxation affairs of Sandra Stefanovich and OJG Engineering Pty Ltd. The respondent initially decided not to confirm or deny the existence of such documents, citing section 25 of the FOI Act and asserting that any such documents, if they existed, would be exempt under section 37(1). This decision was affirmed on internal review and subsequently by the IC.

The primary legal issues before the court were whether the respondent and the IC had correctly applied section 25 of the FOI Act in neither confirming nor denying the existence of the requested documents, and whether the justification for this approach, based on the potential exemption of such documents under section 37(1), was sound. The court was required to consider the circumstances under which an agency may refuse to confirm or deny the existence of documents and the proper application of the exemption provisions.

The court reasoned that section 25 of the FOI Act permits an agency to neither confirm nor deny the existence of a document if its disclosure would be exempt under certain provisions, including section 37(1). The IC had found that documents falling within the scope of the request, if they existed, would be exempt under section 37(1). The court accepted the IC's conclusion that the use of section 25 was justified in these circumstances, noting that while section 25 should be used only in exceptional circumstances, the FOI Guidelines supported its application when the conditions were met. The court was satisfied that the respondent's response was authorised by sections 25 and 37(1) of the FOI Act.