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

Cairns Port Authority and Department of Lands; Cairns Shelf Co No.16 Pty Ltd (Third Party) (1994) 1 QAR 663

Cairns Port Authority (CPA), objected to the Department of Lands’ (Department) decision to grant access to valuation reports on a parcel of land owned by CPA and leased to Cairns Shelfco.

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The Information Commissioner was satisfied that the majority of the relevant matter concerned the ‘business, professional, commercial and financial affairs’ of CPA.

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

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

CPA submitted that disclosure could reasonably be expected to have an adverse effect on its business, commercial and financial affairs because litigation would likely arise out of the disclosure where substantial irretrievable solicitor-client legal costs would be incurred. [102] The Information Commissioner was not satisfied that the expectation was reasonably based. [129]

Accordingly, the Information Commissioner found that the relevant matter was not exempt under section 45(1)(c) of the FOI Act.

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

The applicant sought access to matter 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)(c) to refuse access to sentences identifying the name of a major customer and another body with which the Board had an ongoing business arrangement.

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The first step in the application of section 45(1)(c) of the FOI Act requires the proper characterisation of the relevant information to determine whether it concerns the business, professional, commercial or financial affairs of an agency or another person. [67]

‘Concern’

The Information Commissioner referred to the Collins English Dictionary and the Australian Concise Oxford Dictionary which defines ‘concerning’ as ‘about, regarding’. [67] It is not sufficient for the information to merely have some connection to business, professional, commercial or financial affairs.

Business affairs

Since the terms ‘business, professional, commercial and financial affairs’ are not defined in the FOI Act, the Information Commissioner was satisfied that the words should be interpreted according to their ordinary meaning. [73]

In determining the ordinary meaning of ‘business affairs’, the Information Commissioner referred to Stewart and Department of Transport36 where the distinction between ‘personal affairs’ and ‘business affairs’ was explained: [73]

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).

Further, the Information Commissioner was satisfied that the principles applied in income tax law to determine whether particular activities amount to ‘business’ are relevant in establishing whether relevant matter concerns ‘business affairs’.37 [74]

In addition, the Information Commissioner found that the meaning of ‘matters of a business nature’ discussed in Croom’s Case38 was relevant to interpreting the scope of the phrase ‘business affairs’. Specifically, for information to relate to matters of a business nature the information must impinge in some way upon the actual conduct or operations of the business undertaking itself. [75]

Commercial affairs

In accordance with the Collins English Dictionary, the ordinary meaning of the word ‘commercial’ is ‘of, connected with or engaged in commerce; mercantile’ and the ordinary meaning of the word ‘commerce’ is ‘the activity embracing all forms of the purchase and sale of goods and services’. [54]

Financial affairs

The Information Commissioner was satisfied that the ordinary meaning of the word ‘financial’ involves the finances or money resources of an agency or another person and the management of those money resources, including credit. [76]

In relation to section 45(1)(c) of the FOI Act, the Information Commissioner was of the opinion that 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’. [75]

The Information Commissioner was satisfied that the relevant matter concerned the business and commercial affairs of the applicant because the document concerned both:

  • the state of the commercial relationship between the Board and the applicant; and
  • an ongoing business arrangement between the applicant and another body engaged in the marketing of eggs. [102]

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

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. [80] The adverse effect must be an adverse effect on the business, professional, commercial or financial affairs as a result of disclosing the relevant information. [80]

Since the general link between business, commercial and financial affairs is the generation of income or profit, the Information Commissioner was satisfied that an adverse effect contemplated under section 45(1)(c) would almost always be pecuniary in nature, whether directly or indirectly. [82]

Whether disclosing relevant matter is capable of causing a competitive harm is relevant in determining whether disclosure could reasonably be expected to have an adverse effect. Whether an agency or another person enjoys a monopoly or operates in a commercially competitive environment are relevant factors in determining whether disclosing relevant matter would cause a competitive harm. [84] Specifically, an adverse effect on a corporation’s business reputation or goodwill will reduce profits or income through the loss of customers and cause a competitive harm. [82]

Where the relevant matter 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 business, professional, commercial or financial affairs of an agency or person. [83]

Here, the Information Commissioner was satisfied that disclosing relevant information could reasonably be expected to have an adverse effect on the Board’s business and commercial affairs, by souring the commercial relationship between the Board and a major customer. [103]

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 disclosure of information. [86]

Where an agency or other person is obliged to provide such information to government as an incident of their employment or as a result of a statutory power compelling disclosure, it is unlikely that disclosure could reasonably be expected to prejudice the future supply of such information to government. [85]

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

The Information Commissioner was satisfied that the public interest in enhancing the accountability of government was not of sufficient weight to overcome the public interest in nondisclosure inherent in the satisfaction of the requirements of section 45(1)(c) of the FOI Act. [106]

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 matter 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)(c).

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The Assistant Commissioner was satisfied that for information to ‘concern’ the business, professional, commercial or financial affairs of a person or agency, it must be information ‘about’ or ‘regarding’ those affairs. [68]

Since the information could be properly characterised as a report concerning the remediation of land and related correspondence, the Assistant Commissioner was satisfied that the information was not ‘about’ or ‘regarding’ the business, professional, commercial or financial affairs of the third party. [74-75]

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

Johnson and Queensland Transport; Department of Public Works (Third Party) (2004) 6 QAR 307

The applicant sought access to information concerning the road, rail and bus infrastructure services for the redevelopment of Lang Park. Queensland Transport (Department) refused access to some relevant matter, relying on a number of FOI provisions, including section 45(1)(c). Specifically, the relevant information comprised parts of a letter from the Department to Public Works (Third Party Agency), parts of a letter to Public Works and parts of a Detailed Pedestrian Study.

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The Information Commissioner was satisfied that the relevant information did not involve the business, commercial or financial affairs of the Third Party Agency. An agency undertakes ‘business’ or ‘commercial affairs’ only to the extent that it is engaged in a business undertaking 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’. [51, 54]

Accordingly, the relevant information did not concern the business, commercial or financial affairs of the Third Party Agency and was not exempt under section 45(1)(c) of the FOI Act.

Re Pope and Queensland Health (1994) 1 QAR 616

The access applicant sought access to the Seawright report (Report), which detailed the findings of an investigation into a complaint made by a former employee of the Sir Albert Sakzewski Viral Centre (SASVC) that Mr Pope had engaged in ‘scientific fraud’. Mr Pope challenged Queensland Health’s (Department) decision to provide access to the Report, relying on a number of FOI provisions including section 45(1)(c).

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

‘Professional affairs’

The Information Commissioner was satisfied that the phrase ‘business, professional, commercial or financial affairs’ does not create mutually exclusive categories, but was intended to cover all forms of commercial activity. [29]

Specifically, the Information Commissioner found that the words ‘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’. [29]

The Information Commissioner considered six indicators that are informative, but by no means determinative, in determining whether an occupation is a ‘profession’, namely: [62]

  • 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.

Here, there was doubt as to whether Mr Pope was a member of a profession and the information in the Report concerned Mr Pope’s activities as a salaried employee at a Queensland government agency. On this basis, the Information Commissioner was satisfied that the information in the Report did not concern the ‘professional affairs’ of Mr Pope. [49-50]

Accordingly, the relevant information was not exempt from disclosure under section 45(1)(c) of the FOI Act.

Queensland 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

The applicants sought access to a report (Report) produced by a geotechnical consultant firm that was commissioned by the Redland Shire Council (Council) to investigate and report on the canal wall stability at Raby Bay Canal Estate in the Shire. The developer of the estate (Third Party) objected to disclosing the relevant information on the basis of section 45(1)(c) of the FOI Act.

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

It is not sufficient for the information to be merely derived from a business, have a connection with a business, or be used in the course of undertaking business. [22] The Information Commissioner found that the majority of the Report, about the geotechnical analysis of the land, was not information concerning the business, commercial or financial affairs of the Third Party. However, parts of the Report which commented on the performance of construction activity and its supervision were properly characterised as information concerning the business, professional or commercial affairs of the Third Party. [25]

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

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

The Third Party submitted that disclosing the Report could reasonably be expected to discourage potential purchasers which would have an adverse effect on the company’s business, commercial and financial affairs. [30] Since the Report actually gave a relatively positive impression of the Estate development and the revetment problems were already a matter of public knowledge, the Information Commissioner was satisfied that disclosing the whole Report could not reasonably be expected to have an adverse effect on the business, commercial and financial affairs of the Third Party. [34]

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

The Information Commissioner recognised the public interest in enhancing accountability in the performance of its functions in approving and supervising the construction work. [49] Further the Information Commissioner recognised the public interest in potential residents having access to the results of an independent investigation and the strong public interest in allowing access to an independent expert’s assessment of possible rectification costs. [50-51] Accordingly, the Information Commissioner was satisfied that disclosing the Report would, on balance, be in the public interest.

Accordingly, the Report was not exempt under section 45(1)(c) of the FOI Act.

Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party) (2003) 6 QAR 294

The applicant sought access to matter relating to a concrete batching plant operated by a third party on land owned by the Port of Brisbane Corporation (Agency). The agency refused access to the relevant information, relying on a number of FOI provisions, including section 45(1)(c).

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The relevant matter concerned the assessment and approval of the third party’s development application. The Deputy Information Commissioner considered the relevant matter did not concern the agency’s business, commercial or financial affairs, but did concern the business affairs of the third party. [43, 44]

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

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

The third party submitted that relevant matter concerning the truck size and number of trips per day out of the development site would give competitors a commercial advantage. However, the Deputy Information Commissioner was satisfied that information of this type was readily ascertainable by a member of the public standing at the entrance of the site. Further, the information was more than three and a half years old. Accordingly disclosing the relevant matter could not reasonably be expected to have an adverse effect on the third party’s business affairs. [49-50]

Accordingly, the Deputy Information Commissioner was satisfied that the relevant matter could not reasonably be expected to have an adverse effect on the third party’s business affairs and were not exempt under section 45(1)(c) of the FOI Act.

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

The Deputy Information Commissioner was satisfied that there was no reasonable basis to expect that disclosure would result in businesses no longer supplying necessary information in support of a development application. [45]

Ringland and Queensland Transport; Black & White (Quick Service) Taxis Ltd (Third Party) (Unreported, Queensland Information Commissioner, 27 November 2006)

The applicant sought access to matter concerning the performance of Black & White Taxis Cairns (Third Party) under its contract with Queensland Transport (Department). The Third Party submitted that the relevant information was exempt from disclosure under a number of FOI provisions, including section 45(1)(c).

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The Assistant Information Commissioner was satisfied that performance information was information concerning the business, professional, commercial or financial affairs of the Third Party. [30]

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

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

The Third Party submitted that disclosure could reasonably be expected to have an adverse effect on its business, commercial and financial affairs by:

  • giving potential competitors an advantage in the marketplace
  • influencing the Department to increase the number of taxi licences in the area; and
  • decreasing the value of taxi licences, should a greater number be issued.

Since the Third Party was the only taxi booking service in Cairns, the Assistant Information Commissioner was satisfied that disclosure could not reasonably be expected to give potential competitors an advantage because there were no direct competitors. [37] The Assistant Information Commissioner was satisfied that the Department was in the best position to made decisions about the number of taxi licences it issues and licence holders. [40-41]

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

The Third Party submitted that it would no longer provide the Department with raw performance data. [47] The Assistant Information Commissioner recognised that the correct test is whether it is reasonable to expect that a substantial number of taxi booking services would refrain from supplying to the government information concerning their performance data. [45]

Since providing such information to the Department was a term of the Third Party’s contract with government, the Assistant Information Commissioner was satisfied that it was not reasonable to expect that the future supply of performance data to government would be prejudiced.

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

The Information Commissioner recognised a strong public interest in ensuring that the Department discharges its function of regulating the taxi service. [63] Similarly there is a public interest in allowing the public to scrutinise the Department’s role in ensuring that minimum service levels are being met. [65] The Information Commissioner rejected the submission that raw data has the potential to be misrepresented and found that its disclosure would allow for informed public debate. [64] The Information Commissioner was satisfied that disclosing the relevant information would, on balance, be in the public interest.

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

Spilsbury and Brisbane City Council; John Wilson & Partners Pty Ltd (Third Party); Environmental Resources Management (Qld) Pty Ltd (Fourth Party) (1999) 5 QAR 335

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)(c).

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The fact that the Report was generated in the course of the Consultants’ consultancy operations, and employs methodology developed by them, does not, of itself, mean that the relevant matter concerns their business, commercial or financial affairs. The Information Commissioner was satisfied that the relevant matter in the Report was not information about the business, commercial or financial affairs of the Consultants. [48]

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

Vynque Pty Ltd and Department of Primary Industries; Mario Urzi Sand & Gravel (Third Party) (1998) 4 QAR 393

The applicant, as a registered leaseholder of a land fronting the Fitzroy River, sought access to information relating to the terms of sale set by the Department of Primary Industries (Department) for the extraction by a commercial operator of sand and gravel (Third Party) from the Fitzroy River. Specifically, the relevant matter concerned the details of past and current permits setting the minimum and maximum amounts of material permitted or required to be extracted, without identifying financial and royalty rate information.

Does the relevant matter concern the business, professional, commercial or financial affairs of an agency or another person?

The Information Commissioner was satisfied that the relevant matter concerned the business, professional, commercial or financial affairs of the Department and the Third Party. [20]

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

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

The Information Commissioner was satisfied that the information relating to the past permits no longer had any commercial sensitivity and there was no reasonable basis for expecting that their disclosure would have an adverse effect on the affairs of the Third Party. [22] In respect of the more recent permits, the Information Commissioner was satisfied that the extraction information alone, without any financial or royalty rate information could not reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of the Third Party. [23] The applicant could not reasonably be expected to use the information to his advantage to lodge a successful tender in the future. Further the minimum and maximum extraction information could reasonably be ascertained by the applicant’s ability to observe the Third Party’s extraction operation. [24]

In regards to the Department, the Information Commissioner was satisfied that disclosure could not reasonably be expected to have an adverse effect on the Department’s ability to successfully conduct future commercial negotiations with its clients. [25]

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

The Information Commissioner recognised a strong public interest in the Department’s accountability in conducting proper commercial agreements, monitoring the extraction operations and discharging its public duties in the management of public resources. [28] There was also a public interest favouring disclosure in the public’s ability to monitor whether the Third Party had complied, or was complying, with the terms of the sales permits. [29] The Information Commissioner was satisfied that disclosure could assist a in a more informed public debate about environmental and resource management issues. [30]

The applicant, as a registered leaseholder of the land in question, was found to have a justifiable ‘need to know’ and unique interest in ensuring that his rights are not affected by the use of the extraction site. [31] Since the Department was considering partial resumption of the applicant’s land, there was public interest in ensuring the applicant had the opportunity to make his own assessment of the viability of the site to ensure the applicant enters into an informed discussion regarding resumption. [32]

The Information Commissioner was satisfied that even if the information was adverse to the affairs of the Department and Third Party, disclosure would, on balance, be in the public interest.

Accordingly, the relevant information was not exempt under section 45(1)(c) 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 under 45(1)(c), including tables of referee scores, tables of pricing data and various handwritten notes made by Council during the tender process. The successful tenderer, JJ Richards & Sons (Third Party) asserted that segments of its tender submission were exempt under section 45(1)(c) of the FOI Act.

Does the information concern the business, professional, commercial or financial affairs of an agency or another person?

The Deputy Information Commissioner was satisfied the relevant matter concerned the business, commercial or financial affairs of the Third Party and the unsuccessful tenderers. [88]

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

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

Unsuccessful tender information

Disclosing the tables of referee scores, revealing the level of customer satisfaction with the unsuccessful tenderer, could reasonably be expected to be used by a competitor to identify any perceived weakness and employ the information to win business from the competitor. [106] In regards to Council’s notes about aspects of the unsuccessful tenderers offers, the Deputy Information Commissioner was satisfied that disclosure could cause commercial detriment to the unsuccessful tenderers because, in the competitive marketplace, competitors could use the information to anticipate the position of the competitors in future tender processes. [108]

Accordingly, the Deputy Information Commissioner found that disclosing relevant matter concerning unsuccessful tenderers could reasonably be expected to have an adverse effect on the unsuccessful tenderers’ business, commercial or financial affairs.

Mapping system specification information

The Deputy Information Commissioner was satisfied that disclosing mapping system specification information, detailing the methodology used to identifying cost-effective waste collection routes, could reasonably be expected to have an adverse effect on the Third Party’s business, commercial and financial affairs. Specifically, a competitor could gain a competitive advantage by using the information to make cost savings on its own operations, thereby making it more commercially competitive. [112]

Unaudited financial statements of successful tenderer

The Deputy Information Commissioner was satisfied that disclosing unaudited financial statements of the Third Party could not reasonably be expected to have an adverse effect because the information was already publicly available through ASIC. [120] Nonetheless, disclosing credit information, which was not publicly available, could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the Third Party. Credit information is commercially sensitive and could reasonably be expected to lead to adverse commercial decisions being made about a company by prospective customers, suppliers, business partners and even prospective credit-providers. [125]

Wholesale price list

In regards to a table of base prices for recyclable waste, the Deputy Information Commissioner was satisfied that disclosure could reasonably be expected to have an adverse effect on the Third Party’s business, commercial or financial affairs because competitors could use the information to undercut the Third Party’s prices and gain a competitive advantage.

Attachments

The Deputy Information Commissioner was satisfied that disclosing an attachment detailing how the Third Party intended to implement service delivery under the contract could reasonably be expected to give a competitive advantage to competitors and adversely affect the Third Party’s business, commercial and financial affairs. Specifically, the information would enable the competitor to match or exceed the detailed business systems and services standards. [134]

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

The Third Party submitted that it would refrain from participating or providing certain information in future government tender processes. However, the Deputy Information Commissioner noted that the appropriate test is whether it is reasonable to expect a substantial number of like organisations would refrain from supplying such information to government. [95]

The Deputy Information Commissioner was satisfied that, in such a competitive industry dependent on government contracts, it was not reasonable to expect that tenderers would omit significant information needed for evaluation and disadvantage themselves in the tender process. [98]

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

The Deputy Information Commissioner considered that the public interest in enhancing the accountability of Council was not sufficient to warrant exposing the Third Party to the reasonably anticipated adverse effects of disclosure of commercially sensitive information. [151]

Accordingly, some of the relevant matter was exempt under section 45(1)(c) of the FOI Act. [153]

36Stewart and Department of Transport (Unreported, Queensland Information Commissioner, 9 December 1993).
37 Timms and Department of Employment, Vocational Education, Training and Industrial Relations (Unreported, Queensland Information Commissioner, 17 December 1993).
38Accident Compensation Commission v Croom [1991] 2 VR 322.

Last updated: March 5, 2012