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Application of Section 45(1)(b) 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 information that has a commercial value to an agency or another person (other than trade secrets)?

a) Commercial value

In Re Cannon,2 the Information Commissioner explained the correct approach to the interpretation of section 45(1)(b) of the FOI Act. There are two possible interpretations of the phrase ‘commercial value’.3 Information may have a ‘commercial value’ if:

  • it is valuable for the purpose of carrying on the commercial activity in which an agency or other person is engaged, because it is important or essential to the profitability or viability of a continuing business operation or a pending, one-off commercial transaction
  • a genuine, arms-length buyer would be prepared to obtain the information from the agency or person at a price, such that the market value of the information would be destroyed or diminished if it was otherwise disclosed (ie under the FOI Act).

Information must have a current commercial value at the time a decision is made concerning section 45(1)(b) of the FOI Act.4 This is because information that was once valuable may become aged or out of date such that the information has no remaining commercial value.5 Similarly, information that is publicly available has no commercial value.6

The value of information for the purpose of a one-off commercial transaction may be lost once the transaction is completed.7

The fact that resources or money has been expended in producing or acquiring information is a relevant, but not determinative, factor in determining whether the information has a commercial value.8

The existence of a genuine market for information used by an agency or another person would be a strong indicator that information has a commercial value.9

Information having a degree of innovation or novelty giving rise to a competitive advantage would have commercial value.10 However, novelty itself is not sufficient to signify that information has commercial value.11 Where information about a novel product would be obvious upon inspection of the finished product, the maintenance of secrecy up until the point of production would mean that the information has a commercial value, albeit only for the short to medium term.12

The Information Commissioner has previously considered that:

  • pricing information submitted in a tender for contract that has already been awarded is not information having an intrinsic value for the purpose of carrying on the commercial activity13
  • the fact an invoice for preparation of a report remains unpaid by the access applicant does not necessarily attribute commercial value to the information contained in the report14
  • raw survey data that could still be manipulated to produce reports for clients and could still be relied on by developers is information of a commercial value15
  • the general structure of a tender document, which is dictated by the Invitation for Offers has no particular innovation or novelty sufficient to give the information a commercial value16
  • the format of information is not commercially valuable17
  • the compilation of information from various sources could give rise to a product with some commercial value.18

The party claiming an interest in the commercial value of the information must specifically identify the nature of the commercial value, which may require an explanation of the commercial context and significance of the information in that context.19

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’.20

3. Could disclosure reasonably be expected to destroy or diminish the commercial value of the information?

a) Whether there exists an expectation of destruction or diminution of commercial value

If information is already in the public domain, it may be necessary to consider whether disclosure under the FOI Act could further diminish any commercial value of the information.21

For information that is professional common knowledge in a particular industry, it is still relevant to consider whether disclosure under the FOI Act would further diminish any commercial value of the information, though the information is already fairly widely disseminated.22

In the Information Commissioner’s view disclosure could reasonably be expected to destroy or diminish the commercial value of information if:

  • disclosure would reduce or negate the chance of a person obtaining a patent, design or other intellectual property protection by allowing competitors time to adopt the novel features23
  • disclosure would cause the party to lose a competitive advantage.24

b) Whether the expectation is reasonably based

The expectation that the commercial value of information could be destroyed or diminished must exist as a result of disclosure and be reasonably based.

See ‘Could reasonably be expected to’ Annotation.

2Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraphs 54 and 55.
3Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraphs 54 and 55.  
4Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 56; Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third Party) (2003) 6 QAR 242 at paragraph 47.
5Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 56.
6Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 56; GSA Industries (Aust) Pty Ltd and Brisbane City Council; GS Technology Pty Ltd (Third Party) (1994) 2 QAR 49 at paragraph 36.
7Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 56.
8Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 52; Luder and Fraser Coast Regional Council (Unreported, Queensland Information Commissioner, 7 April 2009) at paragraph 142.
9Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 55.
10Macrossan & Amiet Solicitors and Department of Health (Unreported, Queensland Information Commissioner, 27 February 2002) at paragraph 84; Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third Party) (2003) 6 QAR 242 at paragraph 71.
11 (Unpublished OIC Decision).
12 (Unpublished OIC Decision).
13Dalrymple Shire Council and Department of Main Roads (1998) 4 QAR 474 at paragraph 16.
14Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 23 December 2009) at paragraph 59.
15Luder and Fraser Coast Regional Council (Unreported, Queensland Information Commissioner, 7 April 2009) at paragraphs 137 and 138.
16Macrossan & Amiet Solicitors and Department of Health (Unreported, Queensland Information Commissioner, 27 February 2002) at paragraph 85.
17Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third Party) (2003) 6 QAR 242 at paragraph 79.
18Spilsbury and Brisbane City Council; John Wilson & Partners Pty Ltd (Third Party); Environmental Resources Management (Qld) Pty Ltd (Fourth Party) (1999) 5 QAR 335 at paragraph 43.
19Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 65.
20Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 34.
21Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 58.
22Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 61.  
23 (Unpublished OIC Decision).
24Luder and Fraser Coast Regional Council (Unreported, Queensland Information Commissioner, 7 April 2009) at paragraph 145.

Last updated: April 30, 2012