Patrick and Secretary, Department of Defence (Freedom of information)

This matter concerned an appeal by Mr Patrick against decisions of the Secretary, Department of Defence, to refuse access to documents related to deliverables from the Future Submarine Program. The core of the dispute lay in the tension between Naval Group’s contractual right to protect its confidential information and the public's right to access government processes under the Freedom of Information Act 1982 (Cth) (FOI Act). Naval Group had provided confidential information to the Commonwealth under an agreement that it would not be further disclosed, while Mr Patrick contended that this contractual right was subordinate to the FOI Act.

The court was required to determine whether the disclosure of the documents in question would found an action for breach of confidence, and whether these documents were exempt from disclosure under the FOI Act. Specifically, the court considered the application of section 45 of the FOI Act, which deals with documents disclosure of which would found an action for breach of confidence. The court also examined the criteria outlined in the FOI Guidelines in relation to this exemption.

The court reasoned that the documents contained commercially sensitive information, including cost breakdowns, profit rates, and build strategies, which were marked as confidential and treated as such. Evidence was presented highlighting concerns that disclosure could have a detrimental reputational impact on the Commonwealth's defence relationships with other states and overseas entities, potentially making partners more cautious about sharing sensitive information. The court found that the documents were exempt from disclosure under section 45 of the FOI Act, as their disclosure would indeed found an action for breach of confidence. Consequently, the court affirmed the decisions under review.