Boully and Department of Natural Resources; Stevenson Financial Corporation Pty Ltd (Third Party); Stevenson (Fourth Party)
Boully and Department of Natural Resources; Stevenson Finance Corporation Pty Ltd (Third Party); Stevenson (Fourth Party)
(1994 S0020, 3 March 1998)
Stevenson Finance Corporation Pty Ltd; Stevenson and Department of Natural Resources; Boully (Third Party)
(1994 S0040, 3 March 1998)
These matters arose out of an FOI access application made by Mr and Mrs Boully (the applicants) who sought access to documents concerning the licensing process, under the Water Resources Act 1989 Qld, in respect of the proposed construction by Stevenson Finance Corporation Pty Ltd and H I D Stevenson (Stevenson) of an extremely large dam on Stevenson's property near Dirranbandi.
Stevenson claimed that some of the documents the Department proposed for release were reasonably open to public access, and argued that s.22 of the FOI Act should be applied to refuse access under the FOI Act. At paragraphs 24-26 of the Information Commissioner's reasons for decision, it was found that it was not open to a 'reverse FOI' applicant to raise issues concerning the application of s.22(a) or s.22(b) of the FOI Act.
Stevenson claimed the matter in issue to be exempt under s.41(1) of the FOI Act. The Information Commissioner found that some of the matter in issue was 'deliberative process matter' within the terms of s.41(1)(a) of the FOI Act, but that most of the matter in issue was excluded from eligibility under s.41(1) because it merely consisted of factual or statistical matter (see s.41(2)(b) of the FOI Act) or expert opinion or analysis (see s.41(2)(c) of the FOI Act). Moreover, the Information Commissioner found that the public interest favoured disclosure of the matter in issue in the interests of enhancing the accountability of government agencies and officials for the discharge of their functions in dealing with a large scale development proposal likely to have substantial social, economic and environmental effects on the surrounding district.
Hazard Assessment Reports on the dam proposal, prepared by consulting engineers for Stevenson, were claimed to be exempt under s.45(1)(b). At paragraphs 53-55, the Information Commissioner found that, because of their site-specific nature, the reports did not have 'commercial value' for the purposes of s.45(1)(b), in either of the senses explained in Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at p. 513.
Stevenson also claimed a large number of documents to be exempt under s.45(1)(c), including correspondence between Stevenson and the Department concerning information required by the Department for assessment of the dam licence application, and the Hazard Assessment Reports themselves. The Information Commissioner found that most of that matter could not be properly characterised as information concerning Stevenson's business, commercial or financial affairs, since most of it concerned safety issues and the possible consequences of the proposed dam for surrounding property owners. The Information Commissioner noted in that regard that Supreme Court decisions in other states had held that it was not sufficient that the matter in issue has some connection with a business, or has been provided to an agency by a business, or will be used by a business in the course of undertaking its business operations; the matter in issue must itself be information about business, commercial or financial affairs, in order to satisfy the first element of the test for exemption under s.45(1)(c)(i). The Information Commissioner also found that s.45(1)(c)(ii) was not satisfied, in that no competitive harm could be occasioned by disclosure of safety information concerning a site-specific proposal. Nor would disclosure prejudice the future supply of information which an applicant for a statutory licence was obliged to supply to obtain the licence.
The Hazard Assessment Reports were also claimed to be exempt under s.45(3) of the FOI Act. The Information Commissioner doubted whether the reports comprised research of a kind that s.45(3) was intended to protect, but in any case, the Information Commissioner was satisfied that disclosure could not be expected to have an adverse effect on Stevenson. The Information Commissioner also rejected a claim for exemption under s.46(1)(b) in respect of documents which were not confidential in nature, having previously been tendered as exhibits in the Land Court.