Roberts-Smith and Inspector General Australian Defence Force (Freedom of information)

This matter concerned an application by Mr Roberts-Smith for a confidentiality order over certain redacted documents lodged with the Tribunal. The dispute arose from a freedom of information request concerning documents related to an Inspector-General of the Australian Defence Force (IGADF) review. The core of the application was whether specific redacted material constituted "exempt matter" under the *Freedom of Information Act 1982* (Cth) (FOI Act). The case was heard by Deputy President T Thawley J.

The legal issues before the Court were whether the redacted material in the "Confidential T Documents" contained "exempt matter" as defined by the FOI Act, specifically considering sections 37(1)(b) (confidential sources), 46(b) (contrary to a relevant direction), and 47F (unreasonable disclosure of personal information contrary to public interest). A further issue was the appropriate form and duration of any confidentiality order that might be made.

The Court reasoned that a determination on whether the redacted material was exempt under the specified sections of the FOI Act could pre-judge similar questions central to the Tribunal's review of the Commissioner's decision, which had affirmed the IGADF's finding that certain diary entries were exempt under s 46(b). The Court found a sufficient connection between the redacted material and the diary entries, such that disclosure of the former would reveal at least part of the latter. Consequently, the Court considered it appropriate to make a direction under s 35(4) of the *Administrative Appeals Tribunal Act 1975* (Cth). The Court rejected Mr Roberts-Smith's submission for an order that would terminate upon the conclusion of the review, preferring an order subject to further order, allowing the issue to be revisited if Mr Roberts-Smith was successful in his review application. The question of costs was deferred to the conclusion of the review application.

The Court ordered that, pursuant to section 35(4) of the *Administrative Appeals Tribunal Act 1975* (Cth), until further order, disclosure to any person other than the respondent, the respondent’s representatives, the Tribunal and Tribunal staff of the redacted parts of T5, T14, T17 and T18 lodged on 28 October 2022 be prohibited.