25 year old federal government documents protected under the national security exemption of the Freedom of Information Act

Key Point:
  • Disclosing the methodology behind the Department of Defence’s security clearance assessment process could reasonably be expected to cause damage to the security of the Commonwealth and is protected under the Freedom of Information Act 1982 (Cth).

In the matter of Oz and Department of Defence (Freedom of Information) [2018] AICmr 49 (22 March 2018), Oz (the Applicant) sought access to documents created some 25 years ago. The Applicant asserted that the documents detailed remarks made against him as a part of the security clearance assessment process undertaken by the Department of Defence at the time (DoD).

On 18 May 2017 DoD granted the Applicant access to one document in full and the remaining 6 documents in part. In doing so it relied on the damage to national security exemption set out in section 33(a)(i) of the Freedom of Information Act 1982 (Cth) (FOI Act). For a document to be exempt under section 33(a)(i), it must be shown that disclosure would or could reasonably be expected to cause damage to the security of the Commonwealth.

The Applicant sought an internal review of DoD’s decision. On 21 June 2017 DoD largely reaffirmed its original decision but gave the Applicant access to further material in relation to one document only. On 3 July 2017, the Applicant sought a review of DoD’s decision by the Australian Information Commission (OAIC). Under section 55K of the FOI Act, once a matter is referred to OAIC, OAIC can affirm, vary or set aside and make a decision in substitute of the agency’s decision.

During the course OAIC’s review, DoD contended that disclosure of the information would jeopardize the vetting procedure employed as a part of the security assessment process. Even though the information in question was produced some 25 years ago, its importance to the security clearance process had not diminished with the passage of time.

DoD also asserted that the security clearance assessment process is central to the Australian Government’s ability to secure classified information and to safeguard it against misuse or unauthorized disclosure. Disclosing the information could reasonably jeopardize the process by:

  1. undermining the effectiveness of the security vetting process by disclosing the methodology behind it;
  2. increasing the possibility of future assessments being circumvented or undermined; and
  3. affecting the willingness of foreign governments and international agencies to share confidential information with the Australian Government.

For his part, the Applicant contended that the disclosure could not affect the integrity and efficacy of the security clearance assessment process and that a refusal to release the information would result in the Applicant not being afforded natural justice.

In making a determination OAIC noted that section 33(a)(i) of the FOI Act is not subject to public interest considerations and so the Applicant’s submission relating to whether the disclosure would contribute to the administration of justice for him was not a relevant consideration. OAIC also noted that when the section 33(a)(i) exemption is relied upon and there is doubt as to whether disclosure would jeopardize the national interest, decision makers should err on the side of non-disclosure (emphasis added).

OAIC accepted DoD’s submission and held that the information was critical to the integrity of the security clearance process and to release it may result in the process being made vulnerable to manipulation. OAIC accepted that even though the information was brought into existence 25 years ago its disclosure could reasonably be expected to cause damage to the security of the Commonwealth. On this basis, OAIC denied the Applicant’s request.

Posty by Vanja Simic and John Kell 

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