Overview of Section 35 FOI Act

Section summary

An agency or Minister may neither confirm nor deny the existence of a requested document if the document would, if it existed, contain matter that would be exempt under sections 36, 37, 42 or 42A of the FOI Act. This section applies as though it is a decision to refuse access on the grounds of the relevant exemption.

Background

Section 35 of the FOI Act provides for situations 'where the character of the [requested] document is such that the mere acknowledgment of its existence, albeit accompanied by a denial of access, will itself cause the damage against which the exemption provision is designed to guard'.9

However it has been recognised that the provision is open to potential misuse and accordingly '… it ought to be confined to a very narrow set of exemptions, namely those relating to classes of documents which by their very nature are likely to be widely accepted as especially sensitive'.10

Other relevant FOI Act sections

Section 36, 37, 42 and 42A FOI Act
Section 35 of the FOI Act may only be relied upon where the requested document, if it existed, would be exempt under section 36, 37, 42 or 42A of the FOI Act.

Section 34 FOI Act
This section identifies the requirements for a notification of a decision and reasons under the FOI Act. Section 34 applies to a notice issued by the agency or Minister to neither confirm nor deny the existence of certain documents under section 35.

Section 87A FOI Act
If the Information Commissioner is not satisfied that the requested document contains exempt matter under section 36, 37, 42 or 42A of the FOI Act, the Information Commissioner must first give a copy of that decision only to the agency or Minister. If 28 days after the decision is given to the agency or Minister, the Information Commissioner has not been notified that the agency or Minister has applied for judicial review then the Information Commissioner must give a copy of the decision to the applicant.

If the Information Commissioner directs that access to the document is to be granted and the agency or Minister does not apply for judicial review 28 days after the decision, the agency or Minister must comply with the direction.

9 Australia, Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Act 1978, Canberra, AGPS, 1979 at page 121, 9.27, in EST and Department of Family Services and Aboriginal and Islander Affairs (1995) 2 QAR 645 at paragraph 11.
10 Australia, Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Act 1978, Canberra, AGPS, 1979 at page 121, 9.27, in EST and Department of Family Services and Aboriginal and Islander Affairs (1995) 2 QAR 645 at paragraph 11.

Last updated: March 1, 2012