Key published decisions applying Section 45(1)(b) FOI Act
The Deputy Information Commissioner decided there was no commercial value in a deed of agreement containing terms and conditions upon which Aries Tours Pty Ltd was permitted to take tour groups in Springbrook National Park, because the terms of the deed were out of date and some had been generally disclosed in a newspaper.
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)(b) 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 information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The party claiming interest in the commercial value of the information must identity the nature of the commercial value, which may include the commercial context and significance of the information in that context. [65]
Having regard to the wording of the provision, the Information Commissioner was satisfied that there are two possible interpretations of the phrase ‘commercial value’. Information may have ‘commercial value’ to an agency or another person if: [54-55]
1. it is valuable for the purpose of carrying on the commercial activity in which that 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; or
2. a genuine, arms-length buyer would be prepared to pay to obtain the information from the agency or person, such that the market value of the information would be destroyed or diminished if it could be obtained from a government agency under the FOI Act.25
A genuine market for the information is a significant factor indicating that the information is valuable for the purposes of carrying on a commercial activity. [55]
Resources or money expended in producing or acquiring the information are not sufficient indicators of commercial value and are, at best, relevant factors in determining whether the information has commercial value. [52]
Whether information has commercial value must be assessed at the time the FOI decision maker is applying the provision. Accordingly, information may have no remaining commercial value if the information is out-of-date or publicly available. [56]
The Information Commissioner adopted the definition of ‘commercial’ from the Collins English Dictionary as: ‘of, connected with or engaged in commerce; mercantile’. Similarly, ‘commerce’ is defined as: ‘the activity embracing all forms of the purchase and sale of goods or services’. [54]
Here, the information had no ‘commercial value’. [89]
Could disclosure reasonably be expected to destroy or diminish the commercial value of the information?
Whether there exists an expectation of destruction or diminution of commercial value
The Information Commissioner was satisfied that the commercial value of information may not be destroyed or diminished through disclosure if: [61]
- the information is already in the public domain
- the information is a matter of common knowledge in the relevant industry.
The Information Commissioner was not satisfied that the information had any commercial value and therefore, the relevant matter was not exempt under section 45(1)(b) of the FOI Act. [89]
Dalrymple Shire Council and Department of Main Roads (1998) 4 QAR 474
The applicant sought access to unit rates and other lump sum figures of the successful tender to the Department of Transport (Department) for the construction of sections of the Gregory Development Road. The Department refused access to the relevant matter under a number of FOI provisions including section 45(1)(b).
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The Information Commissioner was satisfied that the lump sum and unit rate information was not information with a commercial value. [16] Pricing information submitted in a tender for contract that has already been awarded is not information having an intrinsic value or continuing value to the conduct of an ongoing business operation. [16]
Accordingly the relevant matter was not exempt under section 45(1)(b) of the FOI Act.
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)(b).
The third party submitted that the report contained information of a commercial value because the applicants, who commissioned the report, had not yet paid for the production of the report and disclosure under the FOI regime would destroy or diminish the information’s commercial value because the applicants would be less likely to pay the invoice. [53]
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The Assistant Commissioner considered 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 report. [59] Accordingly, the information was not of commercial value in either of the senses described in Re Cannon. [61]
Could disclosure reasonably be expected to destroy or diminish the commercial value of the information?
Whether there exists an expectation of destruction or diminution of commercial value
Even if the information had commercial value, the Assistant Commissioner was satisfied that disclosure could not reasonably be expected to destroy or diminish the information’s commercial value because copies of the report had already been sent to the director of each applicant company, by the third party. [61]
Accordingly, the relevant matter was not exempt under section 45(1)(b) of the FOI Act.
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)(b).
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The Information Commissioner was satisfied that information relating to the innovative aspects in the assembly of the water meters was information that had a commercial value to the third party. [36]
Could disclosure reasonably be expected to destroy or diminish the commercial value of the information?
Whether there exists an expectation of destruction or diminution of commercial value
Even though disclosing the relevant matter would disclose information holding a commercial value to the third party, the Information Commissioner was satisfied that disclosure could not reasonably be expected to destroy or diminish the commercial value of the information because: [36]
- the information was already available in the public domain through the Australian Patents Office
- having regard to the relevant matter, the assembly of the third party’s water meter could be readily obtained, broken down and examined through ‘reverse engineering’ to ascertain the inventiveness in the design.
Accordingly, the relevant matter was not exempt under section 45(1)(b) of the FOI Act.
The applicant sought access to raw survey data collected by a surveying company and purchased by the Fraser Coast Regional Council (Council). Council refused access to the information under a number of FOI provisions including section 45(1)(b).
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The Assistant Commissioner was satisfied that the raw survey data had a current and ongoing commercial value to the continuing business operations of the third party surveying company because the data could be manipulated to produce reports for clients and would likely be relied on by developers in further development applications in the area or any changes to the development application. [137-138] The fact that the surveying company had expended resources in collecting the data and Council had expended money in purchasing the data was relevant, but not determinative in considering whether the information was of commercial value. [142]
Could disclosure reasonably be expected to destroy or diminish the commercial value of the information?
Whether there exists an expectation of destruction or diminution of commercial value
The Assistant Commissioner was satisfied that disclosing the survey data could reasonably be expected to destroy or diminish its commercial value because the third party would not be contracted in the future to provide the survey data to developers. Disclosing the information would mean that the surveying company’s competitive advantage would be diminished, particularly because the data was still up to date. [145]
Accordingly, the relevant matter was exempt under section 45(1)(b) of the FOI Act.
The applicant sought access to tender documents lodged with the Department of Health (QH) for the provision of legal services to the Mackay Health Service District. QH refused access to all relevant documents, relying on a number of FOI provisions including section 45(1)(b).
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The Deputy Information Commissioner was satisfied that the relevant matter did not satisfy either of the interpretations of ‘commercial value’ contemplated in Cannon. There was no evidence to support a finding that a genuine, arms-length buyer would be willing to purchase the out-dated tender documents. [83] Further, the general structure of the tender documents did not amount to information of commercial value to the tenderers because their structure was dictated by QH’s Invitation for Offers and there was no particular innovation in the tender documents’ format or presentation. [85]
Could disclosure reasonably be expected to destroy or diminish the commercial value of the information?
Whether there exists an expectation of destruction or diminution of commercial value
The Deputy Information Commissioner was satisfied that disclosing the generic information in the tender documents could not reasonably be expected to diminish any value to the tenderers. The generic information included details of: [84]
- the quality and expertise of the tenderers’ staff
- the tenderers’ dedication to client service; and
- the extent of the tenders’ resources and established systems of client education and risk management.
The Deputy Information Commissioner was satisfied that disclosing other information in the tender documents that tenderers could adapt for use in future tenders, could not reasonably be expected to diminish commercial value, unless the information had a degree of innovation or novelty giving the tenderer a commercial advantage. [84] None of the information in issue consisted of innovative or novel information providing a commercial advantage to the tenderer.
Accordingly, the relevant matter was not exempt under section 45(1)(b) of the FOI Act.
The applicant sought access to parts of a report prepared by two third party consultants (Consultants) engaged by the Brisbane City Council (BCC), recommending a management strategy for Brisbane’s wastewater treatment plants. BCC refused access to the relevant matter under a number of FOI provisions including section 45(1)(b).
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The Information Commissioner was satisfied that the report’s methodology was not so novel as to warrant a finding that the information was of a commercial value in either of the meanings established by Cannon. [42]
Where a third party authors a report for an agency under contract and the contact assigns all intellectual property rights attaching to the contract material to the agency, the third party contractor cannot assert a claim under section 45(1)(b) of the FOI Act. [44] Here, the Consultants assigned all commercial interest in the report to BCC under contract, therefore the Consultants held no commercial value in the information that could be diminished by disclosure. [44]
The Information Commissioner was satisfied that the compilation of information from various sources could give rise to a product that has some commercial value, in a very limited market. Nonetheless, there was no evidence to support such a finding in relation to the report. [43]
Accordingly, the relevant matter was not exempt under section 45(1)(b) of the FOI Act.
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 under section 45(1)(b) of the FOI Act.
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
The Deputy Information Commissioner adopted the meaning of ‘commercial value’ from Cannon and noted that the relevant matter must have commercial value at the time in which the authorised decision-maker makes a decision under the FOI Act. Out of date matter may have no commercial value and information that is publicly available has no commercial value. [47]
The relevant matter consisted of:
- a facsimile with attached technical drawings of skips
- attachments to the tender submissions including a solvency statement, unaudited financial statements, a customer list, detail of staff turnover, an industrial relations policy and the final tender price submitted by the tenderer
- attachments to the tender submissions including ‘Management and Delivery of Services’, ‘Quality Assurance’ and ‘Maintenance Program Details’
- attachments to the tender submissions including a proposed education program and a proposed advertising campaign
- an Environmental Plan and a Workplace Health and Safety Plan; and
- a multimedia package consisting of an electronic presentation on CD and VHS.
The Deputy Information Commissioner was satisfied that disclosing the technical drawing of the skips would not disclose information of a commercial value. The drawings did not contain information important to the profitability or viability of the third party’s continuing business operations because the information merely revealed the dimensions and basic design of the skips which could be observed by a person undertaking a visual inspection of the skips. [53-54] Similarly, there was no evidence to suggest that a genuine arms length buyer would be prepared to buy a copy of the drawings. [53]
The Deputy Information Commissioner was satisfied that the solvency statement and unaudited financial statements attached to the tender submissions did not disclose information of commercial value. The solvency statement contained merely ‘innocuous material’ and the unaudited financial statements were publicly available through the Australian Securities and Investments Commission. [56]
In some circumstances, customer lists may possess a commercial value, however here, the customer list was almost three years old and many contracts had expired. Therefore the Deputy Information Commissioner was satisfied that the information was no longer of commercial value. [59]
In relation to the staff turnover documents and the industrial relations policy, the Deputy Information Commissioner was satisfied that there was no evidence that a genuine arms length buyer would be prepared to purchase the information and the information was not important to the profitability or viability of JJ Richards’ continuing business operations. [57-58]
The final tender price of the successful tenderer is not generally information that would be exempt under the FOI Act because the amount would be publicly available in the Council’s annual report and financial statements. [60-62]
The Deputy Information Commissioner was satisfied that the attachments to the tender submissions dealing with ‘Management and Delivery of Services’, ‘Quality Assurance’ and ‘Maintenance Program Details’ were not information having a commercial value. There was no indication in the third party submissions as to what information was innovative or gave a cost advantage or any other advantage over other users of the same equipment. [68]
In relation to the proposed education program and proposed advertising campaign the Deputy Information Commissioner found that there could be no genuine arms length buyer willing to purchase the information because the documents were almost three years old. [71]
The Environmental Plan and Workplace Health and Safety Plan were merely a response to legislative obligations and quality assurance requirements and did not contain any novel or innovative information giving the third party a competitive edge. Accordingly, the Deputy Information Commissioner was satisfied that there was no market for the purchase of such information or any evidence to suggest the information was important to the profitability or viability of the third party’s continuing business operations. [75-76]
In relation to the multimedia package the Deputy Information Commissioner noted that section 45(1)(b) of the FOI Act does not protect the format of the information, only the commercially valuable information itself. While the multimedia package would have been innovative some three years earlier, the actual information merely gave a general overview of the third party’s business operations and was not information that had a commercial value within either of the meanings approved in Cannon. [79]
Would disclosing the relevant matter disclose information that has a commercial value to an agency or another person (other than trade secrets)?
Commercial value
Since none of the relevant matter was information of a commercial value to the agency or third party, the relevant matter did not qualify for exemption under section 45(1)(b) of the FOI Act.
25 The Information Commissioner noted that the first interpretation may be preferable as there would be evidentiary difficulties in proving the second interpretation.
Last updated: April 30, 2012