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

Section summary

Matter is exempt if:

• the information is confidential in nature;
• the information was communicated in confidence; and
• disclosing the relevant information could reasonably be expected to prejudice the future supply of such information;

unless disclosure would, on balance, be in the public interest.

Background

Section 46(2) of the FOI Act was amended in 2005 to give independent operation to section 46(1)(b) of the FOI Act. Prior to its amendment, section 46(2) of the FOI Act included the words 'would found an action for breach of confidence'. The Information Commissioner in B and Brisbane North Regional Health Authority¹, considered that if disclosure would found an action for breach of confidence, then section 46(1)(a) would always apply and section 46(1)(b) of the FOI Act would be rendered largely redundant.

The Information Commissioner considered section 46(1)(b) was intended to apply where information of a confidential nature communicated in confidence would not be protected by general law but should nevertheless be protected from disclosure if disclosing the relevant information could reasonably be expected to prejudice the future supply of such information and the disclosure would not, on balance, be in the public interest.²

Other relevant FOI sections

Section 41 FOI Act
Under section 41(1) of the FOI Act, matter is exempt if its disclosure would disclose matter relating to the deliberative processes of government and would, on balance, be contrary to the public interest. Section 46(2) excludes the type of information mentioned in section 41(1) from exemption under section 46, unless it consists of matter communicated by persons or bodies other than those listed in section 46(2).