23/04/2026
In the recent case of Bachelard v Australian Federal Police [2025] FCAFC 5, the Federal Court of Australia has reinforced the core principle of the act: the Australian right to access government documents under the Freedom of Information Act 1982 (Cth) (FOI Act)
Background
Journalist Michael Bachelard sought access to documents held by the Australian Federal Police (AFP) relating to an AFP investigation into former Commissioner Mick Keelty, in the context of war crime allegations relating to Ben Roberts-Smith.
The AFP identified four relevant documents (three witness statements and a professional standards report) and on 26 November 2021, the AFP refused Mr Bachelard access to the documents stating the documents were exempt as the information would reveal “confidential source information”. That refusal was upheld by the Administrative Appeals Tribunal (AAT, now the Administrative Review Tribunal), which also accepted that the documents were exempt under the Act.
Mr Bachelard appealed to the Federal Court on the grounds that the AAT had misinterpreted sections of the FOI Act.
The Federal Court enters the scene
The Federal Court set aside the AAT’s decision, and sent the matter back to the Tribunal for reconsideration.
While the Court did not order the release of the documents, it found that the Tribunal had indeed made multiple legal errors in how it interpreted and applied the FOI Act, specifically the disclosure exemptions. The Court identified multiple issues with the Tribunal’s approach to the exemptions. Some of these are as follows.
Confidential source
Firstly, not every witness is a “confidential source” and statements to an investigator were not confidential sources of information because the statements were not made with the expectation that they would be kept confidential. The Court stated that a “confidential source” requires an assurance or understanding that the sources identity will remain confidential. The focus should be on what the witness expected in relation to confidentiality, not the agencies general practices. Therefore, simply providing information to an agency does not automatically make someone a confidential source.
Partial disclosure
The Court found that the Tribunal had failed to properly consider whether the documents could be released in an edited or redacted form with the sensitive material removed from the documents.
Personal privacy exemption
A more technical issue in this case was how agencies are able to apply the personal privacy exemption in relation to the disclosure of documents.
The Court found the personal privacy exemption only applies where the material contains personal information about an identifiable person as the subject matter of the information, as opposed to just including the name of a witness when the content of the information was not about that witness.
Public interest test
The Court found that the Tribunal had misapplied the public interest test where the Tribunal determined the disclosure of the documents would be contrary to the public interest. The Court reiterated the pro-disclosure principles of the FOI Act.
What does this mean for agencies and applicants?
This decision is an important reminder that FOI exemptions must be applied carefully and precisely whilst looking at the entire document as well as the context in which the document was made.
When reviewing FOI requests, agencies should consider:
- Whether there is actual evidence of confidentiality in witness statements
- The ability to provide partial disclosure of documents
- The context of any personal information
- Pro-disclosure principles of the FOI Act
For applicants, this case highlights that refusals can be challenged where it appears exemptions have been applied too broadly. Contact the team at Griffin Legal for advice on Freedom of Information requests.