Patrick; Secretary, Department of Defence and

This matter concerned a review of a decision by the Department of Defence to refuse access to documents relating to a Final Cost Estimate Template submitted for the Future Submarine Competitive Evaluation Process. The applicant, Senator Patrick, sought access to these documents, which the Department claimed were wholly exempt under section 45 of the *Freedom of Information Act 1982* (Cth) (the FOI Act) on the basis that their disclosure would found an action for breach of confidence.

The primary legal issues before the court were whether section 45 of the FOI Act was displaced by a "required by law" clause within the relevant contract, and what constituted an action for breach of confidence for the purposes of section 45, specifically whether a purely contractual breach sufficed and if detriment was a necessary element. Senator Patrick argued that the contractual provisions, which subjected the release of information to the FOI Act, implied an intention to exclude the operation of section 45.

The court rejected Senator Patrick's contentions, reasoning that the "required by law" clause in the contract did not expressly displace section 45. Instead, it provided an exception to the contractual obligation of confidence, permitting disclosures required by law, including those mandated by the FOI Act. The court affirmed that access under section 11A of the FOI Act is subject to exemptions, and a document is exempt if its disclosure would found an action for breach of confidence, as provided by section 45. The court found that the contractual terms did not override this statutory exemption.

Consequently, the court set aside the decision of the Australian Information Commissioner and substituted a decision that the requested information was wholly exempt from disclosure pursuant to section 45 of the FOI Act.