Patrick and Secretary, Department of Industry, Science and Resources (Freedom of information)

This matter concerned an application for review of a decision made by the Department of Industry, Science and Resources regarding a request for documents related to a prospective national gas reservation scheme. The applicant, Mr Patrick, sought access to these documents, while the Department contended that certain material was exempt from disclosure under various provisions of the *Freedom of Information Act 1982* (Cth), including those relating to international relations, legal professional privilege, material obtained in confidence, Commonwealth-State relations, and deliberative processes. The review was heard by Deputy President Britten-Jones.

The primary legal issues before the court were whether the Department had sufficiently established that the information in question was exempt from disclosure under the cited provisions of the FOI Act. Specifically, the court was required to determine if there was adequate evidence to demonstrate that information received by the Commonwealth was confidential and obtained in confidence for the purposes of sections 45 and 47B of the Act. Additionally, the court had to consider the public interest test in relation to material claimed to be exempt under the deliberative processes exemption.

The court's reasoning involved a detailed examination of the evidence presented, particularly the affidavit of Mr Jeremenko, who was Head of the Oil and Gas Division in the Department. While Mr Jeremenko was not involved in the generation of the documents in 2021, his evidence, based on his experience and discussions with a departmental officer who was present at the time, addressed the usual practice of discussions on policy between Commonwealth and state governments being conducted on a mutual understanding of confidence. The court found that while this evidence established a probability of confidentiality, it was not determinative. Ultimately, the court set aside the decision under review, finding that while some documents were exempt under sections 33(a)(iii) and 42, access should be granted to other material claimed to be conditionally exempt under section 47C, as access would not be contrary to the public interest.