Cairns Port Authority and Department of Lands; Cairns Shelf Co No.16 Pty Ltd (Third Party)

Cairns Port Authority and Department of Lands; Cairns Shelf Co No.16 Pty Ltd (Third Party)
(1993 S0111, 11 August 1994) 

This was a ‘reverse-FOI’ application by the Cairns Port Authority (the CPA) seeking to restrain the Department of Lands from disclosing valuation reports (and drafts thereof) prepared by the Valuer-General in respect of a parcel of land owned by the CPA and leased for commercial purposes to the applicant for access.  The documents in issue contained factual information about the subject land, and expert opinion and analysis by valuers, which supported valuation figures determined by the Valuer-General.  The valuation figures were used as a basis for calculating the rent payable under the lease in respect of the subject land. 

Some of the matter contained in the documents in issue was not matter of a kind mentioned in s.41(1)(a) of the FOI Act because it did not answer the statutory description of 'opinion', 'advice', 'recommendation', 'consultation' or 'deliberation', but the balance was matter of a kind mentioned in s.41(1)(a).  The latter was not eligible for exemption under s.46(1) of the Act because if any duty of confidence was owed to the CPA (which was an agency of the kind mentioned in s.46(2)(b)), the application of s.46(1) was excluded by the terms of s.46(2).  The former was not exempt under s.46(1)(a) because it comprised information which was not confidential in nature:  it was known to the applicant for access, and was readily accessible by any member of the public, either from publicly available sources or by physical inspection of the subject land and observation of its physical layout. 

The matter in issue which fell within the terms of s.41(1)(a) of the FOI Act because it was opinion, advice or recommendation prepared in the course of and for the purposes of the deliberative processes involved in the functions of the Valuer-General, did not, however, qualify for exemption under s.41(1) of the FOI Act.  Because it comprised expert opinion or analysis by expert valuers employed in the Office of the Valuer-General, it was excluded from exemption under s.41(1) by the terms of s.41(2)(c) of the FOI Act.  The Information Commissioner expressed the view that one indicator of when a person will qualify as an expert in a particular field of knowledge, for the purposes of s.41(2)(c), is whether the person would be accepted by a court as qualified to give expert opinion evidence.  Senior valuers on the staff of the Valuer-General qualified on that count as experts on issues relating to the valuation of real property.  The Information Commissioner also considered it likely that the final (as distinct from draft) valuation reports issued by the Valuer-General under s.27 of the Valuation of Land Act 1994 Qld were excluded from eligibility for exemption under s.41(1) by the terms of s.41(3)(b) because they answered the description of a 'record of, as a formal statement of the reasons for, a final decision … given in the exercise of … a power or … a statutory function'. 

While the matter in issue concerned the business or commercial affairs of the CPA, I held that it was not exempt matter under s.45(1)(c) of the FOI Act.  The first expected adverse effect of disclosure of the matter in issue, as claimed by the CPA, was that the lessee would commence litigation challenging the valuations (and hence the amount of rent payable under the lease), and that the CPA would incur substantial, unrecoverable solicitor-client legal costs, even if successful in that litigation.  The Information Commissioner expressed reservations (at paragraphs 103-104) about whether a claimed adverse effect of this kind should be recognised on public policy grounds, ie whether an exemption provision could have been intended to operate so as to prevent disclosure of information which would assist a person to air a grievance (or to seek to vindicate an asserted legal right) in the courts.  In any event, after reviewing the evidence, the Information Commissioner was not satisfied that disclosure of the matter in issue could reasonably be expected to result in the lessee commencing a legal challenge to the valuations (for reasons explained at paragraphs 105-129). 

The CPA also claimed that if it was compelled to disclose to prospective tenants valuation material relative to its harbour lands, this would put it at a commercial disadvantage in respect of its capacity to negotiate the most favourable terms for its commercial leases.  The Information Commissioner considered this submission to be misconceived, because the circumstances of the case were very different to a situation where disclosure might prejudice a landowner’s negotiating position with respect to ongoing negotiations (a situation in which different considerations might well apply). 

At paragraphs 136-144, the Information Commissioner considered the public interest considerations weighing for and against disclosure of the matter in issue.  The Information Commissioner expressed the view that the public interest in the fair treatment of the lessee according to law, in the accountability of the Valuer-General for the performance of his functions, and in accountability for the adoption of fair commercial practices by State Government authorities which operate on a commercial basis, would tell decisively in favour of disclosure of the matter in issue. 

The same two adverse effects claimed by the CPA were relied upon as 'substantial adverse effects' to the financial or property interests of the CPA, for the purposes of s.49 of the FOI Act.  For the same reasons given when considering s.45(1)(c), the Information Commissioner held that disclosure of the matter in issue could not reasonably be expected to have the adverse effects (substantial or otherwise) claimed by the CPA.  After reviewing relevant authorities, the Information Commissioner expressed the view that the adjective 'substantial' in the phrase 'substantial adverse effect' is used in the sense of grave, weighty, significant or serious. 

At paragraphs 153-182, the Information Commissioner considered the interpretation and application of s.48 of the FOI Act in its original form, ie, before it was amended by the Freedom of Information (Review of Secrecy Provision Exemption) Amendment Act 1994.  That analysis has no continuing significance in light of the amendments made to s.48. 

The CPA applied to the Supreme Court for judicial review of my decision, but withdrew its application a few days prior to a scheduled hearing.  There was a hearing on a contested issue as to payment of legal costs, resulting in a judgment given by Thomas J on 16 December 1994.  Thomas J expressed views on the extent to which participation by the Information Commissioner is appropriate in proceedings in which one of the Information Commissioner’s own decisions is subject to judicial review, notwithstanding the provision made by the legislature in s.99 of the FOI Act (Cairns Port Authority v F N Albietz, Information Commissioner (Queensland) and Ors, Sup. Ct of Qld, No.575 of 1994, 16 December 1994, unreported).