Information as to existence of certain documents – s 25 of the FOI Act

When making decisions about documents under FOI, we understand that some documents are sensitive, and will be exempted from release. But what about when merely confirming or denying the existence of documents could potentially cause harm? Section 25 of the FOI Act provides that in certain circumstances an agency can make a decision to neither confirm nor deny the existence of documents within the scope of an access request.

Section 25(1) of the FOI Act provides that agencies do not need to confirm or deny the existence of a document, if including that information would cause a document containing that information to be exempt on the grounds set out in ss 33, 37(1) or 45A(1) – (3) of the FOI Act.

Section 25(2) of the FOI Act provides that if a request relates to a document that is, or if it existed would be, of a kind referred to in sub-section 25(1), the agency may provide a notice in writing to the applicant that neither confirms nor denies the existence of the hypothetical document.

It is important to note that s 25 of the FOI Act is limited to that following categories of documents that would be otherwise exempt under the following sections of the FOI Act:

• Section 33 - National Security and international relations
• Section 37(1) – Documents affecting law enforcement and public safety
• Section 45A(1),(2), or (3) - Parliamentary Budget Office documents

Searches may not be required

The terms of a request for access may be the first clue that s 25 of the FOI Act might be relevant to consider. As per the OAIC FOI Guidelines at 3.184 , for the section to apply it is not necessarily required for the Agency to conduct searches for documents. Rather, s 25(2) only requires an assessment of the type or kind of document that is being requested, in order to determine whether any of the above outlined provisions would apply (see Paul Farrell and Australian Federal Police [2017] AICmr 113 (Farrell) at paragraph [35]).

As outlined in Re Department of Health and Bernard Vincent Mckay v Lois Jephcott [1985] FCA 370 (4 October 1985) (Jephcott) at paragraph [6] s 25(2) does not authorise the giving of notice under the sub-section unless the agency or Minister is satisfied that the document is, or if it existed would be, of the kind referred to in s 25(1). As discussed above, the agency can be satisfied of this through considering the terms of the relevant request or, as discussed in Jephcott at [6], can be reached through ‘an examination of any relevant file’.

Key takeaways

• Section 25 does not require an agency to necessarily undertake searches. In many cases it is the terms of the request that will guide your decision. Otherwise, in some circumstances, reviewing any relevant file that falls within the terms of the request may be sufficient to determine that s 25 will apply.
• Sub-section 25(2) does not require the agency to determine that the requested document (if it existed), would be exempt under ss 33, 37(1) or 45A. It is sufficient that a response confirming or denying the existence of the requested documents would itself be exempt under the relevant provisions.