Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited

In the case of Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited, the Federal Court was called upon to determine whether the Secretary had the authority to refuse access to documents under the Freedom of Information Act (FOI Act) and provide a "neither confirm nor deny" response without disclosing the existence or non-existence of the requested documents. The dispute arose from the Secretary's decision to refuse access to certain documents related to imiquimod and phentermine, citing potential exemptions under the FOI Act. The Secretary argued that disclosing the existence of the documents would cause the notice itself to be exempt, thereby justifying the "neither confirm nor deny" response.

The primary legal issues before the court were whether the Secretary had the power to give a "neither confirm nor deny" response without revealing the existence or non-existence of the documents and whether including such information in a notice under section 26 would render the notice exempt. The court considered whether the documents were exempt under specific sections of the FOI Act and whether disclosure would prejudice the administration of law. The Tribunal concluded that the Secretary's decisions should be set aside because there was no power to give a "neither confirm nor deny response" for phentermine on the grounds provided. However, for imiquimod, the court found that the documents were exempt under section 37(1)(a) as disclosure would likely prejudice the proper administration of the Health Act by affecting the government's subsidy for medicines and the introduction of generic medicines into the market.

The Federal Court ultimately found in favour of the appeal, setting aside the decision of the Administrative Appeals Tribunal and remitting the matter for reconsideration. The court ordered that the respondent pay the applicant's costs of the appeal. This decision underscores the importance of transparency and the limitations on the use of exemptions under the FOI Act when refusing access to documents.