Xenophon and Secretary, Department of Defence (Freedom of information)

The Administrative Appeals Tribunal reviewed a decision concerning a Freedom of Information (FOI) request made by the applicant for documents related to the Future Submarines Competitive Evaluation Process (CEP). The applicant sought access to the "CEP documentation set" provided to potential international partners, specifically DCNS, Thyssen Krupp Marine Systems (TKMS), and the Japanese Government. The Department of Defence initially claimed exemptions under various sections of the FOI Act, including those relating to national security, defence, and international relations. The Australian Information Commissioner (AIC) subsequently varied this decision, finding the documents exempt under section 33(a)(iii) of the FOI Act, concerning damage to international relations, and also under section 33(a)(ii) for documents 3, 6, 8, and 9, relating to damage to the defence of the Commonwealth.

The Tribunal was required to determine whether documents claimed to be exempt under section 33(a)(iii) of the FOI Act were indeed exempt, and if not, whether parts of those documents claimed to be exempt under section 33(a)(ii) were exempt. The respondent conceded that if the first question was answered affirmatively, the second question would not need to be addressed. The core of the dispute revolved around the potential for disclosure of the requested documents to cause damage to the international relations of the Commonwealth or the defence of the Commonwealth.

The Tribunal considered the evidence presented, including affidavits and oral testimony from representatives of the Department of Defence. The Tribunal noted that the scope of the documents in question had been narrowed by agreement between the parties, and some documents or parts thereof had been subsequently disclosed or rendered irrelevant. The Tribunal applied the provisions of the FOI Act, particularly section 33, which exempts documents if their disclosure would, or could reasonably be expected to, cause damage to the security of the Commonwealth, the defence of the Commonwealth, or the international relations of the Commonwealth. The Tribunal also considered the principle of "mosaic analysis" in relation to the potential harm from disclosing isolated parts of documents.

The Tribunal varied the AIC's decision to reflect the subsequent disclosure or irrelevance of certain documents or parts of documents by agreement. In other respects, the Tribunal affirmed the AIC's decision concerning the exemption of documents under section 33(a)(iii) of the FOI Act. The Tribunal directed the respondent to disclose specific parts of documents identified in a schedule annexed to its reasons, which were no longer considered exempt.