Application of section 46(1)(b) FOI Act

Relevant considerations

1. Does the exception in section 46(2) of the FOI Act apply?

Section 46(2) of the FOI Act excludes information of the kind mentioned in section 41(1)(a) from being exempt under sections 46(1)(a) and (b), unless it consists of matter communicated by a person or body other than the State or an agency or a person in the capacity of:

• a Minister;
• a member of the staff of, or a consultant to, a Minister; or
• an officer of an agency.

See 'Section 41 FOI Act' Annotation.

2. Is the relevant information of a confidential nature?

It is necessary to specifically identify the information claimed to be of a confidential nature for the practical purpose of establishing whether the information is secret and generally inaccessible.¹

The Information Commissioner considered the requirement that information be of a confidential nature under an equitable action in breach of confidence is the same as in section 46(1)(b) of the FOI Act.²

If the information has already been disclosed to the applicant the information will not be of a confidential nature.³ Similarly, the information must be sufficiently inaccessible that it cannot be obtained from sources available to the public⁴ and must not be mere 'trivial tittle-tattle'.⁵ Whether the information is of a confidential nature must be considered at the time of the application; the information may have been confidential at the time it was communicated, but since lost its secrecy or inaccessibility.⁶

3. Has the relevant information been communicated in confidence?

Whether the information has been communicated in confidence is a question of fact to be determined according to the relevant circumstances in which the information was imparted. It is relevant to consider:⁷

• the nature of the relationship between the parties (for example, a fiduciary relationship)
• the nature and sensitivity of the information
• the purpose for which the information was communicated to the relevant agency or Minister
• the circumstances relating to its communication.

The information must be communicated in circumstances where the information supplier's need or desire for confidential treatment (of the supplier's identity, or information supplied, or both) has been expressly or implicitly conveyed (or otherwise must have been apparent to the recipient) and has been understood or accepted by the recipient, giving rise to an express or implicit mutual understanding that the relevant information would be treated in confidence.⁸

It is not necessary that there be any express promise of confidential treatment, as an obligation of confidence can be inferred from the circumstances.⁹ It is not possible for the confider's conduct to unilaterally impose an obligation on the confidant by merely labelling information as confidential, if the information lacks the requisite degree of secrecy.¹⁰

4. Could disclosure reasonably be expected to prejudice the future supply of such information?

a) Prejudice to the future supply of such information

Whether disclosing the relevant matter could reasonably be expected to prejudice the future supply of such information is to be determined by reference to a substantial number of sources available (or likely to be available) to an agency, and not merely one particular supplier of information.¹¹

b) Whether the expectation of prejudice is reasonably based

Disclosing confidential information could not reasonably be expected to prejudice the future supply of information in circumstances where:

• persons are under an obligation to supply such information (for instance government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of information)¹²
• the information is given in order to obtain some benefit, licence or approval from the government (such as information supplied in order to obtain a permit)¹³
• the supplier would be disadvantaged if they failed to supply the information.¹⁴

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

If the above requirements for section 46(1)(b) are satisfied the matter will be exempt, unless disclosure would, on balance, be in the public interest.

The Information Commissioner has previously recognised the following public interest factors favouring disclosure in relation to section 46(1)(b):

• the applicant having access to information which involves or concerns that person to such a degree as to give rise to a justifiable 'need to know' which is more compelling than for other members of the public¹⁵
• ensuring fair treatment in accordance with the law in an individual's dealings with the government¹⁶
• enhancing government accountability in the performance of its functions.¹⁷