EST and Department of Family Services and Aboriginal and Islander Affairs
1993 S0159, 30 June 1995)
This case contains a detailed analysis of s.35 of the FOI Act which permits an agency responding to an FOI access application to neither confirm nor deny the existence of a document containing matter that would be exempt matter under s.36, s.37 or s.42 of the FOI Act.
The Information Commissioner expressed the view that s.35 was intended to be used sparingly, and commented on circumstances in which its use would, and would not, be appropriate. Given the potential for misuse of s.35, the Information Commissioner expressed the view (at paragraph 16) that the FOI Act should be amended to confer a specific power on the Information Commissioner to determine whether a s.35 response has been appropriately employed by an agency or Minister.
At paragraph 20, the Information Commissioner outlined some of the difficulties involved in conducting a review of a decision invoking s.35 of the FOI Act, especially with regard to affording procedural fairness to the applicant for access.
At paragraphs 21-28, the Information Commissioner referred to the five possible outcomes of an external review of a decision invoking s.35, and explained why the current legislative scheme only works satisfactorily when the respondent is found to have correctly invoked s.35. The Information Commissioner called for amendments to make proper provision for a situation where an agency is found to have had no justification for invoking s.35.
In the instant case, however, the current provisions worked satisfactorily because the respondent was justified in invoking s.35. The respondent was concerned, generally, to conceal the existence and/or identity of sources of notifications in child protection matters. The application of s.42(1)(b) of the FOI Act in such circumstances is explained at paragraphs 40-48.