Boulton and Whitsunday Regional Council
(210258, 30 June 2008)
Section 46(1)(a) Matter communicated in confidence
The applicant sought access to a written agreement between the Whitsunday Regional Council (Council) and third parties relating to a proposed resort development. Both Council and the third parties claimed that the agreement was exempt from disclosure under section 46(1)(a) of the FOI Act even though the agreement had come to an end.
Assistant Commissioner (AC) Henry applied the test for exemption established by the Information Commissioner in ‘B’ and Brisbane North Regional Heath Authority.
To determine whether there was an identifiable plaintiff with standing to bring a hypothetical action for breach of confidence, AC Henry considered how the agreement came to an end, and whether the contractual obligation of confidence continued in effect.
In respect of how the agreement came to an end, it was necessary to consider the terms of the agreement to determine whether it had been frustrated or terminated. AC Henry found that the agreement had been terminated by an event contemplated by the parties to the agreement.
In respect of whether the contractual obligation of confidence set out in the agreement survived termination, AC Henry assessed the parties’ intention and considered the nature of the confidentiality clause in question. AC Henry found that:
· the confidentiality clause was a secondary or procedural clause (rather than a primary clause which creates substantive primary performance obligations)
· case law establishes that secondary clauses are likely to be enforced by a court after a contract has been terminated
· the contractual obligation of confidence in the agreement survived termination.
AC Henry also considered the application of the iniquity exception, and found that as the agreement constituted ‘third party information’ and there was no evidence of illegal activity, breach of the law (including fraud) or serious misbehaviour, the exception did not apply in this case to deny protection to the agreement.
Accordingly, AC Henry was satisfied that:
· there was a clearly identifiable plaintiff with standing to enforce an obligation of confidence against Council
· the agreement was exempt from disclosure under section 46(1)(a) of the FOI Act.