BHP Coal Pty Ltd & Ors and Department of Employment, Economic Development and Innovation; Cherwell Creek Coal Pty Ltd (Third Party) (210949, 210950, 210951)

Application number:
210949, 210950, 210951
Decision date:
Wednesday, Jun 22, 2011

BHP Coal Pty Ltd & Ors and Department of Employment, Economic Development and Innovation; Cherwell Creek Coal Pty Ltd (Third Party)
(210949, 210950, 210951, 22 June 2011)

 

The applicant companies applied to the Department of Employment, Economic Development and Innovation for access to documents regarding the third party’s activities under an exploration permit granted under the Mineral Resources Act 1989 (Qld) (MR Act). 

 

The applicants’ sought access to:

·          progress reports and expenditure statements lodged by the third party with the Department in accordance with mandatory reporting obligations imposed by the MR Act; and

·          miscellaneous documents provided to the Department by the third party in support of applications for renewal of the relevant exploration permit.

 

Assistant Commissioner Henry (AC Henry) considered whether:

·          the progress reports and expenditure statements were exempt from disclosure under section 46(1)(a) of the Freedom of Information Act 1992 (Qld) (FOI Act)

·          drilling and geological data contained in the progress reports was exempt from disclosure under sections 45(1)(a) and 45(1)(b) of the FOI Act; and

·          the progress reports and miscellaneous documents were exempt from disclosure under section 45(1)(c) of the FOI Act.

 

Section 46(1)(a) Breach of confidence

 

AC Henry considered the application of section 46(1)(a) to the progress reports and expenditure statements which the third party had lodged with the Department in accordance with mandatory reporting conditions imposed on tenure holders under the MR Act.  The reporting conditions relevantly provide that progress reports will be held confidentially until an exploration permit is relinquished, and that expenditure statements will be held confidentially in perpetuity. 

 

With respect to the progress reports, AC Henry was satisfied that:

 

·          the passage of the Amendment Act had effectively caused the relinquishment of the third party’s interest in the relevant land

·          these documents could no longer be said to be subject to the conditional obligation of confidence contained in the reporting conditions (therefore, the Department may now place them on open file); and

·          the progress reports do not qualify for exemption from disclosure under section 46(1)(a) of the FOI Act.

 

With respect to the expenditure statements, AC Henry was satisfied that:

 

·          the expenditure statements continued to be subject to an obligation of confidence in favour of the third party, in accordance with both the reporting conditions and longstanding Departmental practice; and

·          the expenditure statements are exempt from disclosure under section 46(1)(a) of the FOI Act.

 

Section 45(1(a) Matter relating to trade secrets, business affairs and research

 

AC Henry considered whether the drilling data contained in the progress reports comprised a trade secret.  AC Henry was not satisfied that the relevant information could be said to comprise a ‘formula, pattern, device or compilation’ of the kind discussed in Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491.  Rather, it comprises information as to drilling outcomes and the geological composition of coal deposits.

 

Accordingly, AC Henry found that the drilling data does not qualify for exemption from disclosure under section 45(1)(a) of the FOI Act.

 

Section 45(1)(b) Matter relating to trade secrets, business affairs and research

 

AC Henry considered whether the drilling data contained in the progress reports had current commercial value and if it did, whether its disclosure could reasonably be expected to destroy or diminish that commercial value.

 

Taking into account the third party’s statutory right to seek compensation from the applicants for particular loss under the Mineral Resources (Peak Downs Mine) Amendment Act 2008 (Qld), AC Henry found that the drilling data:

 

·          could no longer be said to be subject to the conditional obligation of confidence contained in the reporting conditions (therefore, the Department may now place them on open file);

·          does not comprise information having current commercial value; and

·          does not qualify for exemption from disclosure under section 45(1)(b) of the FOI Act.

 

Section 45(1)(c) Matter relating to trade secrets, business affairs and research

 

Given the finding that the expenditure statements are exempt from disclosure under section 46(1)(a) of the FOI Act, AC Henry considered whether disclosure of the progress reports and miscellaneous documents could reasonably be expected to have an adverse effect on the third party’s business affairs and therefore qualify for exemption under section 45(1)(c) of the FOI Act.

 

After consideration of all the evidence, AC Henry found that:

 

·          disclosure of the relevant information could not reasonably by expected to have an adverse effect on the business, professional, commercial or financial affairs of the third party (given the information relates to land which is no longer subject to the third party’s relevant tenure); and

·          the progress reports and miscellaneous documents do not qualify for exemption from disclosure under section 45(1)(c) of the FOI Act.