Re Prinn and Department of Defence

This matter concerned an appeal by Mr Prinn against a decision of the Privacy Commissioner, which affirmed a decision of the Department of Defence. The dispute centred on Mr Prinn's request for access to documents under the Freedom of Information Act 1982 (Cth). The Department of Defence had refused access to certain documents, or parts thereof, on the grounds that they were exempt under section 33(a)(i) of the Act, which relates to documents the disclosure of which would, or could reasonably be expected to, cause damage to the security of the Commonwealth. The Administrative Appeals Tribunal was required to review this decision.

The primary legal issue before the Tribunal was whether the documents, or parts of them, were exempt from disclosure under section 33(a)(i) of the Freedom of Information Act 1982 (Cth). A secondary, but crucial, issue was the extent to which Mr Prinn's intentions in seeking access to the documents, and his concerns about the vetting process, were relevant to the determination of the exemption claim.

The Tribunal, presided over by Deputy President S A Forgie, affirmed the decision of the Privacy Commissioner. The Tribunal reasoned that its role in reviewing a decision under the Freedom of Information Act was strictly confined by the powers conferred and boundaries defined within that legislation. It was not permitted to exercise discretion where a document was found to be exempt under Division 2 of Part IV of the Act. The Tribunal emphasised that section 58(2) of the Act expressly forbids the Tribunal from granting access to exempt matter, regardless of the applicant's intentions or the perceived worthiness of their reasons for seeking access. The Tribunal clarified that while an applicant's reasons might be relevant when considering conditionally exempt documents under Division 3 of Part IV, this did not apply to exemptions prescribed in Division 2, such as section 33(a)(i). In such cases, Parliament had already determined the balance of public interest, precluding any balancing exercise by the Tribunal.

Consequently, the Tribunal decided to affirm the decision of the Privacy Commissioner dated 29 August 2014, which in turn affirmed the decision of the Department of Defence dated 27 July 2012.