Application of Section 45(1)(c) 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. Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The relevant information must be properly characterised to determine whether it concerns the ‘business, professional, commercial or financial affairs’ of an agency or another person.2

a) ‘Concern

The information must concern the business, professional, commercial or financial affairs of an agency or another person. It is not sufficient if the information is merely derived from a business, has a connection with a business, or is used in the course of undertaking business.3

Matter will ‘concern’ the business, professional, commercial or financial affairs of a person or agency if the information is ‘about’ or ‘regarding’ those affairs.4

b) ‘Business, professional, commercial or financial affairs

The terms ‘business, professional, commercial or financial affairs’ are not defined in the FOI Act. As such, the Information Commissioner has interpreted the terms according to their ordinary meanings.5

The phrase ‘business, professional, commercial or financial affairs’ does not create mutually exclusive categories.6

The common link between the terms is the generation of income or profits.7 In Johnson8 the Information Commissioner was satisfied that an agency undertakes ‘business or commercial affairs’ only to the extent that it is engaged in business undertakings for the purpose of generating income or profits. Government agencies engaged in purely governmental work such as policy development do not carry out ‘business affairs’.

The following information has been found to concern the ‘business, commercial or financial affairs’ of an agency or another person:9

  • statements of financial information, including:10
    • audited balance sheets
    • profit and loss accounts
    • information on costs of production
    • information about revenue earned from resale of rights
  • information as to a company’s pricing structure11
  • information gathered to prove the efficacy or otherwise of a product manufactured by a company12
  • information about the nature of operating and financial information including:13
    • future strategies
    • anticipated export market movements
    • selling prices of produce
    • overseas customers
  • a report by a firm of property consultants that analysed tenders received for a property development program;14 and
  • a ship’s master’s report made in respect of a export cargo voyage.15

i) Business affairs

In determining the ordinary meaning of ‘business affairs’, the Information Commissioner considered that:16

For a matter to relate to ‘business affairs’ in the requisite sense, it should ordinarily, in my opinion, relate to the affairs of a business undertaking which is carried on in an organised way (whether it be full time or only intermittent) with the purpose of obtaining profits or gains (whether or not they actually be obtained).

ii) Professional affairs

In Pope17 the Information Commissioner was satisfied that the term ‘professional affairs’ means:

…the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee.

The following six indicators are informative, but by no means determinative, of an occupation that is a ‘profession’:18

  • special advanced knowledge and skill
  • the provision of training and education
  • an ethical code of conduct
  • altruistic service
  • widespread community acceptance and recognition of the vocation as a profession.

iii) Commercial affairs

The Information Commissioner has accepted the ordinary meanings of ‘commercial’ and ‘commerce’ as defined by the Collins English Dictionary:19

Commercial: of, connected with or engaged in commerce; mercantile

Commerce: the activity embracing all forms of the purchase and sale of goods and services.

iv) Financial affairs

The ordinary meaning of the word ‘financial’ involves finances or money resources and the managing of those resources, including credit.20

The term ‘financial affairs’ is broad enough to include ‘the finances of government agencies which do not carry on a function of supplying goods and services on a commercial basis’.21

c) 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’.22

3. Could disclosure reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of such information to government?

a) Whether there exists an expectation of adverse effect on the relevant affairs

The term ‘adverse effect’ is to be interpreted according to its ordinary meaning.23 In the context of section 45(1)(c) of the FOI Act, an ‘adverse effect’ will almost always be pecuniary in nature, whether directly or indirectly, because the terms ‘business, professional, commercial or financial affairs’ refer to activities involving the generation of income or profit.24

The Information Commissioner has previously considered the following anticipated results of disclosure to constitute an ‘adverse effect’:

  • loss of business reputation or goodwill, because it could cause a loss of customers and profit25
  • competitive disadvantage caused in circumstances whether the agency or other person enjoys a monopoly or operates in a commercially competitive.26

b) Whether there exists an expectation of prejudice to the future supply of such information to government

Whether disclosure could reasonably be expected to prejudice the future supply of such information to government is to be determined with reference to the context in which such information is supplied, including the voluntary disclosing of information.27

The appropriate test is whether it is reasonable to expect that a substantial number of persons would refrain from supplying such information in the future.28

Where an agency or other person is obliged to provide such information to government as an incident of their employment, the terms of a contract or as a result of a statutory power compelling disclosure, disclosure could not reasonably be expected to prejudice the future supply of such information to government.29

c) Whether the expectation is reasonably based

See ‘Could reasonably be expected to’ Annotation.

Where the information is already in the public domain or common knowledge in the relevant industry it is unlikely that disclosure could reasonably be expected to have an adverse effect on the relevant affairs of the agency or person.30

Disclosing information that could be readily ascertained by a member of the public simply observing the activities of the agency or other person could not reasonably be expected to have an adverse effect on the affairs of that agency or person.31

4. Would disclosure, on balance, be in the public interest?

The Information Commissioner has previously recognised the following public interest factors favouring disclosure of information subject to section 45(1)(c):

  • enhancing government accountability in the performance of its functions32
  • contributing to informed public debate33
  • ensuring the applicant can enter into an informed discussion regarding resumption of land34
  • enhancing the public’s ability to monitor a third party’s compliance with the terms of a sales permit for the extraction of natural resources.35

2Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at paragraph 67.
3Queensland Community Newspapers Pty Ltd and Redland Shire Council; Civic Projects (Raby Bay) Pty Ltd (Third Party); Sinclair Knight Merz (Fourth Paty); Coffey Partners International Pty Ltd (Fifth Party) (1998) 4 QAR 262 at paragraph 22.
4 In Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at paragraph 67 the Information Commissioner referred to the Collins English Dictionary for the definition of ‘concerning’ as ‘about, regarding’; See also Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 23 December 2009) at paragraph 68.
5Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at paragraph 73.
6Pope and Queensland Health (1994) 1 QAR 616 at paragraph 29.
7Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at paragraph 82.
8Johnson and Department of Transport; Department of Public Works (Third Party) (2004) 6 QAR 307 at paragraph 51.
9 As observed by the Information Commissioner in Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at paragraph 77.
10Re Actors’ Equity and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584.
11Re Drabsch and Collector of Customs (Unreported, Commonwealth AAT, 5 November 1990).
12Public Interest Advocacy Centre and Department of Community Services & Health and Schering Pty Ltd, Re (1991) 23 ALD 714 where health and safety information on a particular drug gathered by a pharmaceutical company.  
13Re Angel and Department of Arts, Heritage and Environment (1985) 9 ALD 113.
14Re Heffernan and Ministry of Transport (1987) 2 VAR 1.
15Re Livestock Transport & Trading and Australian Maritime Safety Authority (Unreported, Commonwealth AAT, 24 December 1991).
16Stewart and Department of Transport (Unreported, Queensland Information Commissioner, 9 December 1993), concerning the distinction between ‘personal affairs’ and ‘business affairs’; adopted in the context of section 45(1)(c) in Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at paragraph 73.
17Pope and Queensland Health (1994) 1 QAR 616 at paragraph 29.
18Pope and Queensland Health (1994) 1 QAR 616 at paragraph 62.
19Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 54.
20Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 76.
21Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 75.
22Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 34.  
23Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 80.
24Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 82.
25Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 82.
26Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 84.
27Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 86.
28Ringland and Department of Transport; Black & White (Quick Service) Taxis Ltd (Third Party) (Unreported, Queensland Information Commissioner, 27 November 2006) at paragraph 45.
29Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 85. See also Ringland and Department of Transport; Black & White (Quick Service) Taxis Ltd (Third Party) (Unreported, Queensland Information Commissioner, 27 November 2006) at paragraph 53 where the Information Commissioner was satisfied that disclosing raw performance data of a third party could not reasonably be expected to prejudice the future supply of such information to government because providing the information was a term of the third party’s contract with the relevant Department.
30Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph 83.
31Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party) (2003) 6 QAR 294 at paragraphs 49-50; Vynque Pty Ltd and Department of Primary Industries; Mario Urzi Sand & Gravel (Third Party) (1998) 4 QAR 393 at paragraph 24.
32Vynque Pty Ltd and Department of Primary Industries; Mario Urzi Sand & Gravel (Third Party) (1998) 4 QAR 393 at paragraph 28; Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third Party) (2003) 6 QAR 242 at paragraph 151; Ringland and Department of Transport; Black & White (Quick Service) Taxis Ltd (Third Party) (Unreported, Queensland Information Commissioner, 27 November 2006) at paragraph 65; Queensland Community Newspapers Pty Ltd and Redland Shire Council (1998) 4 QAR 262 at paragraph 49.
33Vynque Pty Ltd and Department of Primary Industries; Mario Urzi Sand & Gravel (Third Party) (1998) 4 QAR 393 at paragraph 30.
34Vynque Pty Ltd and Department of Primary Industries; Mario Urzi Sand & Gravel (Third Party) (1998) 4 QAR 393 at paragraph 32.  
35Vynque Pty Ltd and Department of Primary Industries; Mario Urzi Sand & Gravel (Third Party) (1998) 4 QAR 393 at paragraph 29.

Last updated: March 5, 2012