Patrick and Director-General, Australian Submarine Agency (Freedom of information)

This matter concerned an application for access to documents prepared by the Nuclear-Powered Submarine Taskforce within the Department of Defence, brought by Patrick against the Director-General of the Australian Submarine Agency. The core of the dispute revolved around whether the disclosure of these documents would cause damage to Australia's security, defence, or international relations, or divulge information communicated in confidence, as contemplated by section 33 of the *Freedom of Information Act 1982* (Cth). The Deputy President Britten-Jones presided over the review.

The legal issues before the court were whether the documents were exempt from disclosure under section 33(a)(i), (ii), or (iii) of the FOI Act, on the grounds that their release would, or could reasonably be expected to, cause damage to the security, defence, or international relations of the Commonwealth. Additionally, the court considered whether the documents were exempt under section 33(b) of the FOI Act, on the basis that their disclosure would divulge information communicated in confidence, specifically concerning the trust and confidence between the Australian government and the governments of the United States and the United Kingdom.

The court's reasoning focused on the sensitive and confidential nature of the dealings between the AUKUS partners (Australia, the United Kingdom, and the United States) concerning Australia's acquisition of nuclear-powered submarines. Evidence, including an affidavit from the Head of Policy, Strategy and Engagement Division of the Australian Submarine Agency, established that the AUKUS partnership involves the exchange of highly classified information and that trust and collaboration are critical to the success of this enterprise. The court accepted that the release of the documents would breach the confidence and trust between the governments, thereby damaging Australia's international relations and potentially compromising the program. The FOI Guidelines were referenced, noting that 'international relations' encompasses intangible damage such as loss of trust and confidence.

Consequently, the Deputy President found that there was probative evidence establishing the requisite cause and effect between the disclosure of the documents and damage to the Commonwealth. The decision under review, which affirmed the refusal of access, was therefore affirmed.