Case note: Frati and Australian Criminal Intelligence Commission (Freedom of information)

Frati and Australian Criminal Intelligence Commission (Freedom of information) [2025] ARTA 1775 (12 September 2025

This recent decision of the Australian Review Tribunal (ART) considers s 25 of the Freedom of Information Act 1982 (Cth) (FOI Act) and provides guidance on its application.

In some circumstances, the act of confirming or denying that a specific document exists can cause harm. Section 25 of the FOI Act therefore provides that agencies do not need to provide information about the existence or non-existence of a document in another document, if inclusion of the information in the latter document would cause this document to be exempt under the following provisions of the FOI Act:

• Section 33 – Documents affecting national security, defence or international relations
• Section 37(1) – Documents prejudicing the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance
• Sections 45A(1)-(3) – Documents are Parliamentary Budget Office documents

In these circumstances, the agency is permitted to neither confirm nor deny the existence of a document in response to a request under the FOI Act.

Background

In this matter, the Applicant sought review of a FOI decision made by the Australian Criminal Intelligence Commission (ACIC). In its decision, the ACIC provided the Applicant with access to one document in full and a second document in part, and otherwise neither confirmed nor denied the existence of any other documents within scope of the Applicant’s request, pursuant to s 25 of the FOI Act.

The Applicant applied for review by the Office of The Australian Information Commissioner (OAIC) The matter was subsequently referred by the OAIC to the ART for consideration under subsection 54W(b), on the basis that it would be more appropriate and efficient for the application to be made directly to the ART.

The Applicant’s submissions raised the following arguments regarding the application of s 25 of the FOI Act:

• Section 25 should only be applied in the narrow case where the existence of any documents falling within an FOI request had not been confirmed or denied. In the present case the existence of two documents had already been confirmed by the ACIC.
• ACIC’s position proceeded on an assumption that any acknowledgement by the ACIC as to the existence of further documents would cause the proscribed harm and the assumption as to whether there were further documents could not be applied in the abstract in this way. It followed that the ART should ask the ACIC whether further documents in fact existed, before considering the further application of subsection 37(1) and s 25 of the FOI  Act.

Analysis of section 25

General Member Darian-Smith (the Member) cited a previous decision of the Administrative Appeals Tribunal (AAT), Brooks and Secretary, Department of Defence [2017] AATA 258) containing guidance of the application of s 25. While this was a case considering s 33 of the FOI Act, the reasoning applied equally to a section 37 case (as was the provision at issue here).

Relevantly, in this earlier case, Deputy President Constance at paragraph [30] stated:

It is the fact of denial or confirmation of the existence of documents, if that confirmation or denial was itself recorded in a document, which must meet the requirements of section 33 to be an exempt document […] At no stage of this process is the agency or Minister required to consider whether there are, in fact, documents which themselves are exempt under section 33. Furthermore, subsection 25(2) does not require that a “document” be assumed to exist and then be subjected to the requirements of section 33.

Considering the above, the Member disagreed with the Applicant’s submissions, concluding that:

The ACIC is not required by section 25 to establish that any document of a kind sought by [the Applicant] would in fact be an exempt document under subsection 37(1), nor does it require the ACIC to search for and identify any documents the existence of which it may be suitable to neither confirm nor deny.

Ultimately the Member found that the correct approach was the single step of considering whether a hypothetical document (which confirms or denies whether there are other documents) would itself be an exempt document under subsection 37(1) of the FOI Act. Due to the answer is this case being yes, s 25 of the FOI Act was found to apply. 

Key takeaways

In this matter, it is made it clear that the sole consideration when applying s 25 is whether the information conveyed in confirming or denying the existence of a document would render any other document containing that information exempt under a relevant section of the FOI Act. No consideration of whether the document actually exists is required. Further, the fact that certain documents may have been released to an applicant in conjunction with an exercise of s 25, does not alter the relevance or application of s 25 of the FOI Act.