Key published decisions applying Section 45(1)(a) FOI Act

Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491

The applicant sought access to documents concerning the approval by the Minister for Primary Industries for the Egg Marketing Board (Board) to use the name ‘Smoothshell’. The Board identified and provided partial access to three relevant documents. The Board relied on a number of FOI provisions including section 45(1)(a) to refuse access to sentences identifying the name of a major customer and another body with which the Board had an ongoing business arrangement.

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

Trade secrets

The Information Commissioner adopted the meaning of ‘trade secret’ from the American ‘Restatement of the law of Torts’ (1939, Volume 4, paragraph 757) as ‘any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it’. The Information Commissioner cited with approval the following factors in determining whether disclosing the relevant matter would disclose ‘trade secrets’: [43, 49]

  • 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
  • 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
  • the necessity for secrecy, including the taking of appropriate steps to confine dissemination of the relevant information to those who need to know for the purposes of the business, or to persons pledged to observe confidentiality
  • that information, originally secret, may lose its secret character with the passage of time
  • that the relevant information be used in, or usable in, a trade or business
  • that the relevant information would be to the advantage of trade rivals to obtain
  • that trade secrets can include not only secret formulae for the manufacture of products, but also information concerning customers and their needs.

The Information Commissioner was satisfied that there is no requirement for information to be of a technical nature to be a ‘trade secret’. However, the more technical the information the more likely the information will be a trade secret, as a matter of fact. [49]

The Information Commissioner was satisfied that it is not necessary for the Board to prove or describe any type of harm that would occur as a result of disclosure in order to satisfy the exemption. [36]

Agency or another person

The Information Commissioner adopted the definition of the word ‘person’ from the Acts Interpretation Act 1954 (Qld) to include both ‘an individual and a corporation’. [34]

The Information Commissioner was satisfied that the relevant matter was not a trade secret. [89] Accordingly, the relevant matter was not exempt under section 45(1)(a) of the FOI Act.

Electrical Trades Union (Simpson) and Treasury Department (Unreported, Queensland Information Commissioner, 24 August 2009)

The applicant sought access to a report produced by a third party (Report), concerning the salaries of senior executives in certain Government Owned Corporations (GOC). The Treasury Department (Department) refused access to the Report, relying on a number of FOI provisions including section 45(1)(a).

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

Trade secrets

The Department submitted that the ‘client lists’, ‘methodologies’ and ‘analysis’ in the Report amounted to trade secrets of the third party. The ‘client lists’ identified each client or organisation that participated in the pay comparison and provided confidential and exclusive data to the third party. The ‘methodologies’ were the method of analysis used by the third party to compare the pays of the GOCs and the specific measure allocated to particular roles. The ‘analysis’ in the Report was the third party’s analysis of the pay comparison and advice. [85, 88]

The Assistant Commissioner was satisfied that the ‘client lists’, ‘methodologies’ and ‘analysis’ in the Report amounted to trade secrets of the third party because:

  • appropriate steps were taken by the third party to confine the dissemination of relevant information, including imposing confidentiality requirement on clients such as the Treasury Department
  • despite the change in the economic marketplace since the Report, the information had not lost its secret character or value
  • trade rivals would find the information advantageous; and
  • significant monetary resources, skill and intellectual process was used by the third party to develop the information. [97]

Having regard to the wording of the provision, the Assistant Commissioner was satisfied that it is not necessary to prove or describe any type of harm that would occur as a result of disclosure. [82]

Accordingly, the relevant matter was exempt under section 45(1)(a) of the FOI Act.

Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 23 December 2009)

The applicants sought access to documents relating to the removal of a parcel of land from the Environmental Management Register; specifically, part of a report prepared by a third party. The Department of Environment and Resource Management (Department) refused access to part of the report relying on a number of FOI provisions, including section 45(1)(a).

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

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

Trade secrets

The third party submitted that disclosing the relevant matter would disclose processes which were the subject of a draft patent application and would therefore disclose trade secrets. [42]

The Assistant Commissioner was satisfied that the information in the report did not amount to trade secrets because: [44]

  • the third party disseminated the report by previously providing it to a director of one of the applicants
  • there was no evidence that the report was given to the applicants on a confidential basis
  • the relevant information did not have, or had lost its ‘secret character’ because the dissemination was not confined; and
  • there was no evidence that the third party had taken any steps to guard the secrecy of the information in the report.

Accordingly, the relevant matter was not exempt under section 45(1)(a) of the FOI Act.

GSA Industries (Aust) Pty Ltd and Brisbane City Council; GS Technology Pty Ltd (Third Party) (1994) 2 QAR 49

The applicant sought access to tender documents lodged with the Brisbane City Council (BCC) for the supply of water meters. BCC refused access to correspondence between the solicitors of a third party and BCC concerning breach of patent and copyright, relying on a number of FOI provisions including section 45(1)(a).

The Information Commissioner was not satisfied that the relevant matter could be characterised as a ‘trade secret’. [34]

Macrossan & Amiet Solicitors and Department of Health (Unreported, Queensland Information Commissioner, 27 February 2002)

The applicant sought access to tender submissions lodged with the Department of Health (QH) for the provision of legal services to the Mackay Health Service District. QH refused access to relevant matter, relying on a number of FOI provisions including section 45(1)(a).

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

Trade secrets

QH submitted that the names of the tenderers’ clients and the identity of the primary contact person within client organisations, as disclosed in the tender documents, amounted to ‘trade secrets’ of the tendering law firms. [72]

The Deputy Information Commissioner was satisfied that the relevant matter (the identity of the law firms’ clients and contacts) did not have the requisite element of secrecy to be characterised as a trade secret. The Deputy Information Commissioner noted that it is relatively well known in the legal community which firms act for particular clients and that type of information is often publicised. [76]

Further, in its call for submissions, QH drew attention to the operation of the FOI Act and specifically requested the tenderers to endorse any confidential or commercially sensitive information. The fact that none of the tenderers endorsed any segment of the tender documents as confidential or commercially sensitive further justified the Deputy Commissioner’s finding that the relevant matter did not amount to a trade secret. [75]

Accordingly, the relevant matter was not exempt under section 45(1)(a) of the FOI Act.

Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third Party) (2003) 6 QAR 242

The applicant sought access to tender submissions lodged with the Caboolture Shire Council (Council) for the provision of waste management services and related material. Council refused access to some relevant matter, relying on a number of FOI provisions. The successful tenderer, JJ Richards & Sons (Third Party) asserted that its Environmental Plan and Workplace Health and Safety Plan were exempt from disclosure under section 45(1)(a) of the FOI Act.

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

Trade secrets

While the Deputy Information Commissioner was satisfied that the Third Party had invested both time and expense in developing the plans, they could not be characterised as ‘trade secrets’. The plans were statements of principle and intent, outlining the general steps that the Third Party would take to comply with the relevant legislation. The information did not contain any secret formula or process for conducting business and could not be characterised as ‘trade secrets’. [39-42]

The Deputy Information Commissioner noted that Council, in its Conditions of Tender, had drawn attention to the operation of the FOI Act and specifically requested that tenderers endorse any confidential or commercially sensitive information. The fact that the Third Party had endorsed their unaudited financial statements as confidential and not their Environmental Plan or Workplace Health and Safety Plan confirmed the Deputy Information Commissioner’s opinion that the relevant matter did not amount to trade secrets because the Third Party had not taken measures to guard the secrecy of its information. [35-38]

Accordingly the relevant matter was not exempt from disclosure under section 45(1)(a) of the FOI Act.

Last updated: April 30, 2012