Application of Section 45(1)(a) FOI Act

Relevant considerations

1. Does the relevant matter concern the business, professional, commercial or financial affairs of the applicant?

Matter is not exempt under section 45(1) if it concerns the business, professional, commercial or financial affairs of the applicant.

2. Would disclosing the relevant matter disclose trade secrets of an agency or another person?

Notably, this exemption does not require any harm or prejudice as a result of disclosure. Rather, it is sufficient if disclosing the relevant matter would disclose trade secrets of an agency or another person.2

a) Trade secrets

In Re Cannon the term ‘trade secret’ was explained as ‘any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it’.3

The Information Commissioner has found the following considerations relevant to determining whether matter would disclose ‘trade secrets’:4

  • the extent to which the information is known outside of the business
  • the extent to which the information is known by employees and others involved in the business, including steps taken to confine dissemination of the information to those who need to know for the purposes of the business, or to persons pledged to observe confidentiality
  • the extent of measures taken by the business to guard the secrecy of the information
  • the value of the information to the business and to its competitors
  • the amount of effort or money expended in developing the information
  • the ease or difficulty with which the information could be properly acquired or duplicated by others
  • whether the passage of time has resulted in information, originally secret, losing lose its secret character.

There is no requirement for information to be of a technical nature to be a ‘trade secret’. In fact, trade secrets may include not only formulae for the manufacture of products, but information concerning customers and their needs. However, the more technical the information the more likely the information will be a trade secret, as a matter of fact.5

As to the level of secrecy, it is noted that in cases of tenders, if tenderers are requested in the conditions of tender to mark any commercially sensitive information as ‘confidential’ and the tenderer fails to do so, it may be inferred that the relevant matter does not amount to ‘trade secrets’.6

b) Agency or another person

Agency’ is defined in section 8 of the FOI Act as a department, local government, or public authority.

The Information Commissioner has adopted the definition of the word ‘person’ from the Acts Interpretation Act 1954 (Qld) to include both ‘an individual and a corporation’.7

2Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 36; Electrical Trades Union (Simpson) and Treasury Department (Unreported, Queensland Information Commissioner, 24 August 2009) at paragraph 82.
3Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraphs 43-49, citing the American ‘Restatement of the law of Torts’: (1939, Volume 4, paragraph 757) which was referred to by Gowans J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty ltd [1967] VR 37.
4Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraphs 43 and 48, citing the American ‘Restatement of the law of Torts’: (1939, Volume 4, paragraph 757) which was referred to by Gowans J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty ltd [1967] VR 37; Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 49 citing Searle Australia v Public Interest Advocacy Centre (1992) 108 ALR 163.
5Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 49 citing Searle Australia v Public Interest Advocacy Centre (1992) 108 ALR 163.
6Macrossan & Amiet Solicitors and Department of Health (Unreported, Queensland Information Commissioner, 27 February 2002) at paragraph 75; Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third Party) (2003) 6 QAR 242 at paragraphs 35-38.
7Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 34.

Last updated: April 30, 2012