Case Note: 'BBM' and Department of Defence (Freedom of Information)

'BBM' and Department of Defence (Freedom of Information) [2026] AICmr 69 (10 August 2026)

This recent decision of Acting General Manager Freedom of Information Case Management, Justin Lodge, delegate of the Information Commissioner (the Delegate), discusses the application of s 24A of the FOI Act.

In this matter, the Office of the Australian Information Commissioner (OAIC) affirms the Department of Defence’s (Department) decision to refuse the Applicant’s request for documents, on the grounds that all reasonable steps had been taken to find the documents, and the documents cannot be found or do not exist.

This case provides a useful reminder of what sort of evidence an agency may consider providing in Information Commissioner (IC) review proceedings regarding a decision under s 24A of the FOI Act.

Background

The timeline to this matter was as follows:

• On 5 November 2024, the Applicant applied to the Department for documents relating to an incident that occurred in 1987.
• On 21 November 2024, the Department refused access under s24A of the FOI Act on the basis that it had taken all reasonable steps to locate documents within the scope of the request, but none could be found.
• On 22 November 2024, the Applicant sought an internal review of the decision.
• On 23 December 2024, the Department was deemed to have affirmed its original decision by way of not making an internal review decision within the statutory timeframe.
• On 18 February 2025, the applicant applied for IC review. On 13 March 2025, The Department partially released one document to the applicant under a purported internal review decision.
• On 21 March 2025, the OAIC asked if the applicant wished to proceed with the IC Review.
• On 23 March 2025, the Applicant maintained that the Department has not provided all relevant documents.

The primary concern for the Delegate was whether the Department had taken all reasonable steps to identify documents that were within the scope of the request, and that any further documents either could not be found or did not exist.

The Department’s submissions

As per paragraph [13] of the decision, the Delegate noted that s 24A of the FOI Act requires that an agency take ‘all reasonable steps’ to find a requested document before refusing access to it on the basis that a document cannot be found or does not exist.

The Delegate noted that the following areas had undertaken searches for documents within the scope of the Applicant’s request:

• the Joint Military Police Unit (the JPMU)
• the Registrar of Military Justice
• the Office of the Director of Military Prosecutions (the ODMP), and
• the Army which searched its historical unit disciplinary and investigation files.

The Delegate noted that it was these searches that led to the one document being located by the Army, which was released in part to the Applicant.  The purported internal review decision made on 13 March 2025 also explained why the other three business areas were unable to locate documents, being that the subject matter of the FOI request was not handled by the JPMU and did not result in a hearing or a trial.

The Delegate also noted the Department’s submissions made on 29 April 2026, where the Department confirmed it had undertaken further searches that did not identify any further documents. The Department also confirmed that it had sought advice from subject matter experts. The subject matter experts advised that given the historical nature of the documents and the passage of time, it could be expected that the records of the category sought by the applicant would ordinarily have been destroyed in accordance with the Department’s routine document practices.

The Applicant did not provide submission in this matter.

Consideration

In making their decision, the Delegate noted that the evidence provided by the Department included evidence of the searches undertaken in relation to the request and the outcome of those searches. The Delegate also noted that the evidence provided by the Department identified the:

• date searches were undertaken
• persons who undertook the searches
• locations searched
• search terms used
• outcomes of the searches undertaken, and
• reasons as to why no documents have been found.

Having considered the material at issue, the Delegate was satisfied that further documents within the scope of the Applicant’s request could not be found, given:

• the age of the documents being requested
• the explanation provided by the Department about its record retention policies for documents of this nature
• the explanation provided by the Department as to why the JPMU, registrar of Military Justice, and the ODMP were unable to locate relevant documents, and
• the evidence of the multiple searches undertaken by the Department to date.

The Delegate therefore found that the Department had taken all reasonable steps to locate other documents relevant to the applicant’s access request. The Delegate was satisfied that other documents could not be found or did not exist. The Delegate therefore affirmed the Department’s decision.

Key takeaways

• Agencies should make sure that there is evidence of all searches made, including locations searched and keywords used. Such evidence will be relevant if a matter reaches IC Review.
• If in the course of an IC review it is identified that further searches for documents may be appropriate, the agency should consider undertaking these searches, and document these searches appropriately.
• Where it becomes apparent in the course of IC review that there is previously unidentified material within the scope of an applicant’s request, agencies should consider releasing this further material where it is appropriate to do so, as this may help narrow the issues between the parties.
• Where appropriate, subject matter experts can provide invaluable context and information to assist the IC in making its decision.

If your agency requires advice or assistance with the processing of FOI requests, or managing IC review matters, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.